Representatives of several nude dance clubs plan to appeal a 6th U.S. Circuit Court of Appeals decision that upheld Tennessee's public indecency law.
Bradley Shafer, attorney for Deja Vu of Nashville, Inc. and three other plaintiffs, says he will file a petition with the 6th Circuit for full-panel review of the three-judge panel's decision in In Re: State of Tennessee Public Indecency Statute.
If that is unsuccessful, Shafer says his clients will ask the U.S. Supreme Court to hear the case.
Shafer criticized last week's 6th Circuit decision, which found that Tennessee's public indecency statute does not violate the First Amendment. "The panel incorrectly held that the law was content neutral. This law was clearly a content-based attack on nude dancing, not a content-neutral law regulating public nudity," he said. "The Tennessee Legislature referred to this law as the 'anti-nude dancing law.' That shows that this law targets expression at nude dancing establishments," he said.
Shafer points to the law's preamble, in which the Legislature makes clear that its intent is to regulate nude dancing.
Several paragraphs in the preamble refer to what legislators apparently thought were the adverse secondary effects associated with nude dancing. For example, one section provides: "There is convincing documented evidence that sexually-oriented businesses including nude dancing establishments, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values."
Government officials often justify restrictions on nude dancing based on the secondary- effects doctrine. The rationale is that the regulations do not target nude dancing because of the expressive conduct associated with the dancing, but because of harmful secondary effects, such as increased crime and decreased property values, allegedly correlated to adult businesses.
The 6th Circuit panel relied on the secondary-effects doctrine in ruling that the Tennessee law did not violate First Amendment free-expression rights. The appeals court wrote that the law was not aimed at the content of the expression at nude dancing establishments but was "instead aimed with adequate precision at combating secondary crime effects."
Shafer said the decision was part of a "disturbing trend" of court decisions that rely on the secondary-effects doctrine to silence adult-oriented expression.
Shafer said he was "hopeful" that the U.S. Supreme Court would hear the case if need be in order to resolve a split in the federal appeals courts with regard to the secondary-effects rationale.
"This recent 6th Circuit decision is diametrically opposed to a recent 5th Circuit decision, J & B Entertainment v. City of Jackson, which ruled that government officials must prove the existence of secondary effects and that the law will ameliorate these secondary effects," he said.
In that case, the 5th Circuit did find that "the government must produce evidence that the challenged ordinance may advance its interest in combating adverse secondary effects attendant to nude dancing."
In this latest decision, however, the 6th Circuit assumed that the law furthered the government's interest in combating secondary effects. Shafer hopes the discrepancy will lead either the full panel of the 6th Circuit or the U.S. Supreme Court to reverse the decision.
Shafer said that the petition for full panel review would be filed on Jan. 27.
The Tennessee attorney general's office, which defended the law, would not comment on the case.