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John Ways v. City of Lincoln
Date: 12-14-2001
Case Number: 01-1521
Judge: Murphy
Court: United States Court of Appeals for the Eighth Circuit
Plaintiff's Attorney: Unknown
Defendant's Attorney: Unknown
repealed Lincoln ordinance prohibiting sexual contact in entertainment businesses.
The district court 1 enjoined enforcement of the ordinance after concluding that it was
unconstitutionally overbroad in violation of the First Amendment. We affirm.
The Lincoln City Council passed Ordinance No. 17613, codified as Lincoln
Municipal Code Section 9.16.240, on February 22, 2000. The ordinance prohibited
any employee or performer from having sexual contact with any other person for
remuneration or in conjunction with a performance or entertainment in any business
establishment. It defined sexual contact as "intentional touching of a person's sexual
organ, buttocks, or breasts, whether covered or not, or kissing, when such contact can
reasonably be construed as being for the purpose of sexual arousal or gratification of
either party or any observer." The ordinance outlined not only what conduct was
prohibited, but also those who may be held responsible for it.2 The preface to the ordinance stated that it intended to curb secondary effects of public sexual contact,
such as immorality, "prostitution, assaultive behavior, and other related criminal
behavior."
On March 6, 2000, John Ways filed this action alleging that Ordinance No.
17613 was unconstitutionally vague and overbroad, in violation of the First
Amendment to the United States Constitution. Ways is director of operations for
Mataya's "Babydolls" Gentlemens Club in Lincoln, Nebraska, and a shareholder in
the corporation that does business as Mataya's, an alcohol-free adult entertainment
business featuring women dancers. The district court issued a preliminary injunction
enjoining enforcement of Ordinance No. 17613, but before the case came on for trial
the Lincoln City Council enacted Ordinance No. 17657, which effectively repealed
Ordinance No. 17613.
* * *
After enactment of Ordinance No. 17657, Ways filed a new action to challenge it. In
that case, which is still pending, the district court denied his motion for preliminary
injunctive relief. The constitutionality of Ordinance No. 17657 with new subsection
(f) is not before us on this appeal which involves only the original ordinance.
After trial in this case was held on October 2, 2000, the court concluded that
Ordinance No. 17613 was not unconstitutionally vague but that it was
unconstitutionally overbroad because it "contains no exception for theaters, concert
halls, art centers, [or] museums" and because the city had not shown that "public
sexual contact in venues other than the adult entertainment business is an accurate
predictor of secondary adverse effects." The district court noted that nude dancing
is "expressive conduct within the outer perimeters of the First Amendment," Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). In addition to its overbreadth
analysis the district court employed the test from United States v. O'Brien, 391 U.S.
367, 377 (1968), concluding that Ordinance No. 17613 restricted First Amendment
rights more than necessary to further an important government interest. The court
rested its decision on its conclusion that Ordinance No. 17613 was facially overbroad,
rather than on any application of the ordinance to Mataya's.
* * *
Click the case caption above for the full text
of the Court's opinion.
About This Case
What was the outcome of John Ways v. City of Lincoln?
The outcome was: Affirmed
Which court heard John Ways v. City of Lincoln?
This case was heard in United States Court of Appeals for the Eighth Circuit, NE. The presiding judge was Murphy.
Who were the attorneys in John Ways v. City of Lincoln?
Plaintiff's attorney: Unknown. Defendant's attorney: Unknown.
When was John Ways v. City of Lincoln decided?
This case was decided on December 14, 2001.