February 8, 2011, by
In the second published decision by the Ninth Circuit in this case, the Court addresses the new framework and burden shifting standard put in place by the United States Supreme Court when addressing constitutional challenges to ordinances aimed at reducing the secondary effects of adult entertainment businesses. (See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) [“Alameda Books”].)
The burden-shifting framework provides that after a municipality supplies evidence supporting its rationale for passing an ordinance, the plaintiffs may attempt to “cast doubt” on the City’s evidence and rationale, after which the City may attempt to rehabilitate its rationale. (Alameda Books, 535 U.S. at 438-39.) Further, a municipality’s justification must not be that its regulation will reduce secondary effects simply by reducing speech proportionately. (Id. at 450, Justice Kennedy’s concurrence.)
The District Court, on remand several years after the Supreme Court’s ruling, employed the new framework and found that two expert declarations submitted by plaintiffs were sufficient to “cast doubt” on the City’s rationale for the ordinance. The declarations suggested that the City’s intent in passing the ordinance was to reduce secondary effects by closing arcades and therefore, proportionately reducing speech.
The Court found this testimony sufficient to shift the burden back to the City to rehabilitate its rationale, but then struck the primary evidence offered by the City for this purpose and granted summary judgment for plaintiffs.
The Ninth Circuit reversed. The Court explained that the District Court erred when it found the two declarations submitted by plaintiffs sufficient to “cast doubt” on the City’s rationale. The Court, in line with all of the key appellate decisions which have applied the Alameda Books framework, found that in order to successfully “cast doubt” on a municipality’s rationale for its adult ordinance, a plaintiff must offer not merely some evidence, but “actual and convincing” evidence. Such evidence must do more than challenge the government’s rationale; it must convincingly discredit the foundation upon which the government’s justification rests. If the City has multiple rationales in support of its regulation, a plaintiff must convincingly discredit all of the offered bases.
The Ninth Circuit found that plaintiffs’ declarations did not satisfy this standard because both declarants were biased, having a financial stake in the outcome of the decision, and neither offered any empirical evidence in support of their conclusions. The Court held that the frailty of such expert evidence must be examined at trial to determine whether it satisfies the heavy burden of “actual and convincing” evidence required under Alameda Books; such a determination is not appropriate on summary judgment.
This opinion reaffirms the holding in Alameda Books that an adult business bears a heavy evidentiary burden when challenging municipal regulations designed to ameliorate secondary effects of such businesses. If either an adult business or a City intends to rely on expert testimony in the second and third phases of the burden-shifting framework, either to “cast doubt” on the City’s grounds for the ordinance or to rehabilitate the ordinance, it must ensure that the expert testimony is sufficiently credible to meet the evidentiary burdens for summary judgment. For an adult business, expert testimony alone, without corroborating empirical evidence, may not do the trick on summary judgment and may require a full blown trial.
For more information on this case or other First Amendment matters, contact Dawn McIntosh or Deborah Fox at 800.464.3559.