Rebecca Willis v. Town of Marshall, North Carolina

The Town of Marshall, North Carolina, hosts regular Friday-night
concerts and community gatherings at the Marshall Depot, the
Town's community center. Rebecca Willis enjoyed attending the
Friday-night gatherings and dancing to the music provided by the
local bands. Willis's unorthodox dancing style, however, led to complaints
about her to the committee in charge of the Depot events. As
a result of these complaints, the Town banned Willis from the Depot.
Willis ultimately filed this § 1983 suit in federal district court. Willis
asserted a host of constitutional claims springing from the Town's
decision to ban her from the Depot and sought a preliminary injunction
requiring the Town to re-admit her to Depot events. The district
court denied Willis's motion for a preliminary injunction. Thereafter,
the court granted summary judgment in favor of the Town, concluding
that Willis's dancing was not constitutionally protected. Willis
appeals. As we explain below, we affirm in part, vacate in part, and
remand for further proceedings.

I.

A.

In the center of the Town of Marshall is the Marshall Depot, a former
railroad depot leased by the Town for use as a community center.

A committee appointed by the Town's Board of Aldermen coordinates
events at the Depot. On Friday nights the Town opens the Depot
and sponsors musical entertainment, permitting local groups to sign
up for playing time. The Friday night concerts are for the benefit of
the public and are attended by community members of all ages. During
the Friday night concerts, the musicians perform on a stage, which
is located in front of rows of auditorium-style seats where people can
sit and listen to the music. There is no real dance floor in the Depot,
but there is small area off to the side of the stage and seating area
where people often dance.

Posted on the back wall of the Depot is a list of the Depot's "Rules
of Behavior," which state:

(1) No Drinking (Alcoholic Beverages);

(2) No Smoking;

(3) Shoes and Shirts Required;

(4) No Sitting on Rails;

(5) No Blocking Doors;

(6) No Cases or Instruments Left on Deck;

(7) No Jamming Inside Depot or on Deck;

(8) No Unsupervised Children Allowed to Run Loose
Around Building; and

(9) No Soliciting.

J.A. 81. There are no other posted rules or regulations regarding dress
or appropriate behavior at the Depot.

Willis lives in Madison County, North Carolina, just outside the
boundaries of Marshall. She regularly attended the Friday night concerts,
where she particularly enjoyed dancing. According to the
Town's evidence, Willis danced in a sexually provocative manner -
gyrating and simulating sexual intercourse with her partner while
"hunch[ed]" on the floor. J.A. 47, 49. The Town's evidence indicates
that Willis wore very short skirts and would frequently bend over
while dancing, exposing her underwear, her buttocks, and her "privates."
J.A. 50.

Community members were concerned about their children being
exposed to Willis's dancing, and a number of them complained to
members of the Depot Committee. The Town contends that members
of the Depot Committee repeatedly spoke to Willis about her dancing
and asked her to "please curtail the provocativeness of her dances."
J.A. 56. These requests were allegedly met with defiance. The Town
says that rather than toning down her dancing, Willis began to dance
even more provocatively.

Willis takes issue with the Town's view of the facts. Willis
describes her style of dance as "exuberant[ ] and flamboyant[ ]," J.A.
9, but not inappropriate in any way.1 Willis acknowledges that she
wore short skirts to the Depot, but she contends that she always wore
underwear and pantyhose and thus could not have exposed her "privates."
According to Willis, only one of the Depot Committee members
once told her to "cool it" after Willis clogged her way through
a cake walk, but the committee member later that night told Willis
that she had been joking.

In any event, the Depot Committee ultimately decided to ban Willis
from attending events at the Depot. This decision was conveyed
to Willis by way of a letter from the Town's mayor. The letter, dated
December 12, 2000, stated: "Due to the inappropriate behavior exhib-
1In her brief, Willis states that she danced no "more provocatively than
Elvis Presley, whose gyrations worried Ed Sullivan about the potential
unraveling of the moral fabric of 1956 society." Brief of Appellant at 38.

ited by you and having received previous warnings from the Marshall
Depot Committee it is the consensus of the Committee that you are
banned from the Marshall Depot. This action is effective as of today's
date." J.A. 39.

After receiving the banishment letter, Willis contacted an attorney.
Her attorney conveyed to the Board Willis's willingness to apologize
for any inadvertent displays of her underwear and to abide by any
dress code that the Board might adopt if the Board would permit her
to return to the Depot. The Board declined to lift the banishment, and
this action followed.

B.

In her complaint, Willis alleged that the Town violated her substantive
due process rights by permanently banishing Willis from a public
forum; that the Town violated her First Amendment rights of free
expression, of association, and to receive information by banning her
from the Depot; that the Town deprived Willis of a liberty interest
without affording her adequate procedural protections; that the
authority upon which the Town relied to banish Willis was unconstitutionally
vague and overbroad; and that the Town denied her equal
protection of the law by singling out Willis for banishment. Willis
also sought entry of a preliminary injunction requiring the Town to
permit her to return to the Depot. The Town filed a motion to dismiss,
and the matter was referred to a magistrate judge for a report and recommendation.

The magistrate judge recommended that the motion to dismiss be
denied except as to Willis's claim that her associational rights were
violated. The magistrate judge also recommended that Willis's
motion for a preliminary injunction be granted. The Town objected
to the magistrate judge's report and recommendation.

The district court considered the Town's objections and entered an
order denying the motion for a preliminary injunction. And while the
Town had yet to file an answer and no discovery had been ordered,
the district court directed that the Town's motion to dismiss would be
converted to a motion for summary judgment. The court gave the parties thirty days to file any additional materials relevant to consideration
of the summary judgment question.

Thirty days after the district court's order converting the motion to
dismiss to a motion for summary judgment, the Town submitted a
memorandum in support of the granting of summary judgment, along
with an additional batch of affidavits. That same day, Willis filed her
memorandum opposing summary judgment, along with additional
affidavits and exhibits. Willis also submitted an affidavit under Rule
56(f) of the Federal Rules of Civil Procedure, alleging summary judgment
was premature because she did not have the opportunity to seek
discovery on her claims. The affidavit sufficiently informed the district
court of the discovery Willis needed to oppose the motion for
summary judgment.

The district court thereafter granted summary judgment in favor of
the town. The court concluded that Willis's recreational dancing did
not amount to speech and thus was not constitutionally protected, a
conclusion that the district court believed defeated Willis's free
speech and association claims as well as her vagueness and overbreadth
claims. To the extent that Willis had a First Amendment right
to receive information provided during the Depot events, the district
court concluded that the Town's decision to ban Willis because of her
conduct and attire was a reasonable regulation of conduct unrelated
to her right to receive information.

As to Willis's substantive due process claim, the district court concluded
that Willis had no protected liberty interest "to be present on
all property owned by the government." J.A. 217. The court also concluded
that because the Town's actions did not deprive Willis of any
constitutionally protected right, her procedural due process claim necessarily
failed. Alternatively, the court concluded that Willis had an
opportunity to appeal the Depot Committee's decision to the Board
of Aldermen, which the court believed to be sufficient to satisfy the
requirements of due process. The court rejected Willis's Equal Protection
claim by noting that there was no evidence of similarly situated
persons who were treated more favorably by the Town. As to Willis's
Rule 56(f) motion for additional discovery, the district court concluded
that because the evidence presented established that the Town
"had a rational basis for all of its challenged actions, further discovery
in this case would be fruitless." J.A. 221.

II.

Willis appeals, challenging the district court's denial of her motion
for a preliminary injunction as well as the court's order granting summary
judgment to the Town. She contends that the district court erred
by granting summary judgment in favor of the Town. Willis argues
that there are genuine issues of material fact that preclude the granting
of summary judgment in favor of the Town on each of the claims she
has asserted and that the district court impermissibly relied on the
Town's version of disputed facts to reach its decision.
Willis brings this action under 42 U.S.C.A. § 1983 (West 2003).

Accordingly, she must establish that she was "deprived of a right
secured by the Constitution or laws of the United States, and that the
alleged deprivation was committed under color of state law." American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The
Town argued below that the actions of the Depot committee did not
amount to state action sufficient to support a § 1983 claim, but the
district court concluded that there were questions of fact as to that
issue that could not be resolved at summary judgment. The Town
does not press the state action issue on appeal, so we do not consider
it. Instead, we focus on whether Willis has presented evidence sufficient
to show the violation of any constitutional rights.

III.

We first consider Willis's claim that the Town violated her First
Amendment rights.

A.

The threshold question in any First Amendment challenge, of
course, is whether any protected First Amendment right is involved.
If the answer to that question is no, then "we need go no further."
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788,
797 (1985). Willis contends that the kind of dancing she engaged in
at the Depot is expressive conduct protected by the First Amendment.
The district court rejected that argument, as do we.

It is well established that the First Amendment protects expressive
conduct as well as pure speech. See, e.g., Texas v. Johnson, 491 U.S.
397, 404 (1989) ("[W]e have long recognized that [the First Amendment's]
protection does not end at the spoken or written word. . . .
[C]onduct may be sufficiently imbued with elements of communication
to fall within the scope of the First and Fourteenth Amendments."
(internal quotation marks omitted)). There is no doubt that, under
some circumstances, dancing will amount to expressive conduct protected
by the First Amendment. For example, most forms of dance,
whether ballet or striptease, when performed for the benefit of an
audience, are considered expressive conduct protected by the First
Amendment. See Giovani Carandola, Ltd. v. Bason, 303 F.3d 507,
511 (4th Cir. 2002) ("The Constitution protects not just political and
ideological speech, but also live entertainment, including nude dancing
and other performances involving nudity or other sexual elements."
(internal quotation marks omitted)); id. at 516 (characterizing
ballet, jazz, and flamenco dance as falling within the "heartland of the
First Amendment's protection" (internal quotation marks and alterations
omitted)); Iota Xi Chapter of Sigma Chi Fraternity v. George
Mason Univ., 993 F.2d 386, 389 (4th Cir. 1993) ("First Amendment
principles governing live entertainment are relatively clear: short of
obscenity, it is generally protected."). Willis, however, was not a performer
in any meaningful sense - she was simply dancing for her own
enjoyment. The question, then, is whether this kind of social or recreational
dancing is entitled to First Amendment protection.

This court has stated that "recreational dancing, although containing
a ‘kernel' of expression, is not conduct which is sufficiently communicative
to bring it within the protection of the First Amendment,"
D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 144
(4th Cir. 1991), a conclusion that seems to foreclose Willis's argument
to the contrary. Willis, however, notes that when stating that
recreational dancing was not protected, the D.G. Restaurant court
relied on the Supreme Court's decision in Dallas v. Stanglin, 490 U.S.
19 (1989). According to Willis, Stanglin did not hold that recreational
or social dancing was not protected speech, and she therefore contends
that we are not bound by D.G. Restaurant's incorrect recitation
of the Stanglin holding. We disagree. Although the Court in Stanglin
did not expressly state that recreational dancing was not protected by
the First Amendment, the analysis and holding of the Stanglin court
make such a conclusion inescapable.

Stanglin involved a First Amendment challenge to an ordinance
that restricted admission to certain dance halls to persons between the
ages of 14 and 18. The owner of a dance hall affected by the ordinance
argued that the ordinance violated his customers' First Amendment
associational rights by prohibiting them from associating with
those over 18. See Stanglin, 490 U.S. at 22-24.

The Supreme Court has recognized a constitutionally-protected
right of association in two separate lines of cases:
In one line of decisions, the Court has concluded that
choices to enter into and maintain certain intimate human
relationships must be secured against undue intrusion by the
State because of the role of such relationships in safeguarding
the individual freedom that is central to our constitutional
scheme. In this respect, freedom of association
receives protection as a fundamental element of personal
liberty. In another set of decisions, the Court has recognized
a right to associate for the purpose of engaging in those
activities protected by the First Amendment - speech,
assembly, petition for the redress of grievances, and the
exercise of religion.

Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). The
Stanglin Court summarily concluded that the dance-hall patrons "are
not engaged in the sort of intimate human relationships" that give rise
to the first kind of associational rights. Stanglin, 490 U.S. at 24 (internal
quotation marks omitted). The Court likewise rejected the argument
that the patrons were engaged in expressive activity giving rise
to the second form of associational rights:

The Dallas ordinance restricts attendance at Class E dance
halls to minors between the ages of 14 and 18 and certain
excepted adults. It thus limits the minors' ability to dance
with adults who may not attend, and it limits the opportunity
of such adults to dance with minors. These opportunities
might be described as "associational" in common parlance,
but they simply do not involve the sort of expressive association
that the First Amendment has been held to protect. The
hundreds of teenagers who congregate each night at this particular
dance hall are not members of any organized association;
they are patrons of the same business establishment.
Most are strangers to one another, and the dance hall admits
all who are willing to pay the admission fee. There is no
suggestion that these patrons "take positions on public questions"
or perform any . . . other similar activities . . . .

The cases cited in Roberts recognize that "freedom of
speech" means more than simply the right to talk and to
write. It is possible to find some kernel of expression in
almost every activity a person undertakes - for example,
walking down the street or meeting one's friends at a shopping
mall - but such a kernel is not sufficient to bring the
activity within the protection of the First Amendment. We
think the activity of these dance-hall patrons - coming
together to engage in recreational dancing - is not protected
by the First Amendment. Thus this activity qualifies neither
as a form of "intimate association" nor as a form of "expressive
association" as those terms were described in Roberts.
Id. at 24-25.

By concluding that the dance-hall ordinance did not implicate the
expressive associational rights of the dance-hall patrons, the Supreme
Court effectively concluded that the kind of dancing at issue in
Stanglin is not expressive activity protected by the First Amendment.
As indicated above, a constitutionally protected right to associate for
expressive purposes exists if the activity for which persons are associating
is itself protected by the First Amendment. See Jaycees, 468
U.S. at 618 ("[T]he Court has recognized a right to associate for the
purpose of engaging in those activities protected by the First
Amendment - speech, assembly, petition for the redress of grievances,
and the exercise of religion."); Cromer v. Brown, 88 F.3d 1315,
1331 (4th Cir. 1996) ("The right to associate in order to express one's
views is inseparable from the right to speak freely." (internal quotation marks omitted)); McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th
Cir. 1994) ("The right of expressive association . . . is protected by
the First Amendment as a necessary corollary of the rights that the
amendment protects by its terms. . . . [A] plaintiff . . . can obtain special
protection for an asserted associational right if she can demonstrate
. . . that the purpose of the association is to engage in activities
independently protected by the First Amendment."); see also Pi
Lambda Phi Fraternity, Inc. v. University of Pittsburgh, 229 F.3d
435, 443-44 (3d Cir. 2000) (noting that in Stanglin, the Supreme
Court held "that, although the patrons were associating with one
another, they were not engaging in First Amendment-protected
expression while doing so").

If recreational dancing were constitutionally protected activity,
then the dance-hall patrons in Stanglin would likewise have had a
constitutionally protected associational right. We therefore conclude
that Stanglin effectively closes the door to Willis's claim that her
Depot-dancing was itself constitutionally protected expressive activity.2
See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter,
J., concurring) (citing Stanglin and stating that "[t]his Court has previously
categorized ballroom dancing as beyond the [First] Amendment's
protection"); D.G. Restaurant, 953 F.2d at 144
("[R]ecreational dancing, although containing a ‘kernel' of expression,
is not conduct which is sufficiently communicative to bring it
within the protection of the First Amendment."); Jarman v. Williams,
753 F.2d 76, 78 (8th Cir. 1985) ("The plaintiffs simply want their
children to have the opportunity to dance for social or recreational
purposes, for their own edification, and not for the enjoyment of an
audience. The dancing here is not claimed to involve any political or
ideological expression. It is not intended to convey any kind of message
. . . . In these circumstances, it is our view that conduct as
opposed to speech is involved.").

2On appeal, Willis suggests that some at the Depot events viewed her
dancing as part of the entertainment, such that she should be considered
a performer whose dance is constitutionally protected. We disagree. In
every group of recreational dancers, there likely will be some whose
dancing is sufficiently good or unusual as to gain an audience among the
other dancers. If that is all it took to convert recreational dancing into
protected speech, it seems likely that the outcome in Stanglin would have
been different.

The Town's decision to prohibit lewd dancing at the Depot is no
different from a decision permitting or prohibiting any other conduct
at the Depot. Just as the Town can prohibit drinking alcohol or smoking
and can require patrons to wear shoes and shirts, the Town can
prohibit lewd or otherwise inappropriate dancing, all without running
afoul of the First Amendment.

We recognize that there is a First Amendment issue lurking in the
background of this case. "Music, as a form of expression and communication,
is protected under the First Amendment." Ward v. Rock
Against Racism, 491 U.S. 781, 790 (1989); see also Giovani Carandola,
Ltd., 303 F.3d at 511; Iota Xi Chapter, 993 F.2d at 389. The live
music performed at the Friday night concerts thus is a form of expression
protected by the First Amendment. Although the First Amendment
refers only to the right to speak, courts have long recognized
that the Amendment also protects the right to receive the speech of
others. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783
(1978) (stating that the "First Amendment . . . afford[s] the public
access to discussion, debate, and the dissemination of information and
ideas"); Martin v. City of Struthers, 319 U.S. 141, 143 (1943)
(explaining that the First Amendment "embraces the right to distribute
literature . . . and necessarily protects the right to receive it"); Rossignol
v. Voorhaar, 316 F.3d 516, 522 (4th Cir. 2003) ("The First
Amendment is about more than a publisher's right to cover his costs.
Indeed, it protects both a speaker's right to communicate information
and ideas to a broad audience and the intended recipients' right to
receive that information and those ideas."); Kreimer v. Bureau of
Police, 958 F.2d 1242, 1255 (3d Cir. 1992) ("[T]he First Amendment
does not merely prohibit the government from enacting laws that censor
information, but additionally encompasses the positive right of
public access to information and ideas. . . . [T]his right . . . includes
the right to some level of access to a public library, the quintessential
locus of the receipt of information.").

Because the musical performances at the Depot involved protected
expression, it follows that Willis herself had a First Amendment right
to listen to them. Admittedly, Willis's claim of a constitutional right
to listen to amateur bluegrass and country music seems somewhat less
compelling than, for example, the right to read a newspaper article
conveying accurate information about a political candidate, see Rossignol, 316 F.3d at 519-21, or the right to use a public library, see
Kreimer, 958 F.2d at 1246-50. Nonetheless, musical performances
like those at the Depot are clearly a form of speech entitled to First
Amendment protection. And where there is a protected right of
speech, there is likewise a protected right to receive the speech. See
Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan,
J., concurring) ("It would be a barren marketplace of ideas that had
only sellers and no buyers."); Conant v. Walters, 309 F.3d 629, 643
(9th Cir. 2002) (Kozinski, J., concurring) ("[T]he right to hear and the
right to speak are flip sides of the same coin."). That the speech at
issue in this case is more entertaining than informative does not
change the analysis. See Schad v. Mount Ephraim, 452 U.S. 61, 65
(1981) ("Entertainment, as well as political and ideological speech, is
protected; motion pictures, programs broadcast by radio and television,
and live entertainment, such as musical and dramatic works, fall
within the First Amendment guarantee."); Stanley, 394 U.S. at 564
(explaining that the "right to receive information and ideas, regardless
of their social worth . . . is fundamental to our free society.").

This lurking right to receive speech (in essence, the right to listen),
however, is not sufficient to trigger First Amendment scrutiny as to
the Town's lewd-dancing policy. First Amendment scrutiny applies
only if there is government action that directly or at least incidentally
affects a protected expressive activity. While application of the
Town's policy on lewd dancing ultimately prevented Willis from
exercising her right to listen, that attenuated, indirect effect on speech
is insufficient to bring the First Amendment into play:
[E]very civil and criminal remedy imposes some conceivable
burden on First Amendment protected activities. One
liable for a civil damages award has less money to spend on
paid political announcements or to contribute to political
causes, yet no one would suggest that such liability gives
rise to a valid First Amendment claim. Similarly, a thief
who is sent to prison might complain that his First Amendment
right to speak in public places has been infringed
because of the confinement, but we have explicitly rejected
a prisoner's claim to a prison environment least restrictive
of his desire to speak to outsiders.

Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 (1986) (citations
omitted); see id. at 708 (O'Connor, J., concurring) (explaining that
First Amendment scrutiny should not be applied if "the government
is regulating neither speech nor an incidental, nonexpressive effect of
speech. Any other conclusion would lead to the absurd result that any
government action that had some conceivable speech-inhibiting consequences,
such as the arrest of a newscaster for a traffic violation,
would require analysis under the First Amendment."). Because recreational
dancing of the type at issue in this case is not expressive conduct
protected by the First Amendment, the factual dispute about the
nature of Willis's dancing is not material to her First Amendment
claim. Thus, with regard to the Town's policy on lewd dancing, there
simply is no First Amendment issue.

B.

Our conclusion that recreational dancing is not protected by the
First Amendment is largely dispositive of the other First Amendment
claims raised by Willis. (Emphasis added by MoreLaw)

While Willis contends that the Town's actions violated her First-
Amendment associational rights, we have already explained that a
constitutionally protected right to associate depends upon the existence
of an activity that is itself protected by the First Amendment.
See Jaycees, 468 U.S. 618; McCabe, 12 F.3d at 1562-63. Because
Willis's dancing is not protected First Amendment activity, Willis had
no protected right to associate for the purpose of dancing. We therefore
need not consider Willis's associational claims further.

Willis also contends that the Town's lewd-dancing policy is unconstitutionally
vague and overbroad. While "vagueness and overbreadth
are related constitutional concepts, they are separate and distinct doctrines,
subject in application to different standards and intended to
achieve different purposes." United States v. Morison, 844 F.2d 1057,
1070 (4th Cir. 1988). "The vagueness doctrine is rooted in due process
principles and is basically directed at lack of sufficient clarity
and precision in the statute; overbreadth, on the other hand, would
invalidate a statute when it infringes on expression to a degree greater
than justified by the legitimate governmental need which is the valid
purpose of the statute." Id. (footnotes, internal quotation marks and
alteration omitted).3

Our conclusion that dancing is not protected speech forecloses
these arguments. See, e.g., Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494 (1982) ("In a facial challenge
to the overbreadth . . . of a law, a court's first task is to determine
whether the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the overbreadth
challenge must fail." (footnotes omitted)); id. at 494-95 (explaining
that where policy alleged to be vague "implicates no constitutionally
protected conduct," the vagueness challenge should be upheld "only
if the enactment is impermissibly vague in all of its applications").4
Because the kind of dancing at issue here is not expressive conduct,
the Town's regulation of it does not implicate the First Amendment
and any further review of the Town's action must be undertaken
under a different provision of the Constitution. See Neinast v. Board
of Trustees, 346 F.3d 585, 592 (6th Cir. 2003) (concluding that conduct
regulations adopted by public library did not directly regulate
speech and thus did not implicate the First Amendment and were subject
only to rational-basis review under other provisions of the Constitution),
cert. denied, 541 U.S. 990 (2004); see also Adventure
Communications, Inc. v. Kentucky Registry of Elec. Fin., 191 F.3d
429, 440 (4th Cir. 1999) ("[L]aws that do not touch or concern speech
or expressive activity in the first instance do not raise First Amendment
concerns, even though they apply to the press, unless they
impermissibly single out the media. Such laws are subject to heightened
scrutiny only if they target or disproportionately burden the
press. Otherwise, we simply apply a rational basis review [if appropriate
under other constitutional provisions]." (citations omitted)).

IV.

Willis also challenges the Town's actions on Equal Protection
grounds.

A.

To the extent that Willis's claim is a facial challenge to the propriety
of the Town's treatment of lewd dancing, her claim is foreclosed
by our conclusion that recreational dancing is not protected by the
First Amendment. "In areas of social and economic policy, a . . . classification
that neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification." FCC v. Beach
Communications, Inc., 508 U.S. 307, 313 (1993). In other words, a
"classification that neither employs inherently suspect distinctions nor
burdens the exercise of a fundamental constitutional right will be
upheld if the classification is rationally related to a legitimate state
interest." Star Scientific, Inc. v. Beales, 278 F.3d 339, 351 (4th Cir.
2002).

Recreational dancing is not constitutionally protected, so the
Town's decision to prohibit lewd dancing is thus subject to review
under the lenient rational-basis standard. And under that standard, a
prohibition against lewd or suggestive dancing at the Depot is unquestionably
valid. The Town opened up the Depot for the Friday night
events to provide a venue for wholesome, family entertainment. Protecting
children from inappropriate sexual displays at the Depot is, at
the very least, a legitimate governmental interest. See, e.g., Sable
Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 131 (1989)
(noting that the government has a "compelling interest in protecting
the physical and psychological well-being of minors" and "preventing
minors from being exposed to indecent telephone messages"). A ban
on lewd or suggestive dancing is rationally related to that interest.
Accordingly, to the extent that Willis challenges the Town's lewddancing
policy, that challenge fails.

B.

Willis also contends, however, that she did not dance inappropriately.
According to Willis, the Town used its power to regulate the
behavior of those attending events at the Depot arbitrarily, by singling
her out for punishment, while refusing to punish others who danced
or dressed similarly. Among other things, Willis notes that the Town
submitted affidavits from community members who stated that Willis
and a dance partner "would hunch on the floor, simulating sexual
intercourse." J.A. 47. The Town, however, banned only Willis; no
action was taken against her unnamed partner.

"The purpose of the equal protection clause of the Fourteenth
Amendment is to secure every person within the State's jurisdiction
against intentional and arbitrary discrimination, whether occasioned
by express terms of a statute or by its improper execution through
duly constituted agents." Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (internal quotation marks and alteration omitted).

Thus, the Supreme Court has recognized the validity of "class of one"
Equal Protection claims, "where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment." Id.
Willis's allegations of arbitrary singling-out by the Town are sufficient
to support an Olech "class of one" claim. The district court,
however, granted summary judgment in favor of the Town. The court
explained that "[e]ven if other people danced similarly to [Willis],
there is no evidence that [the Town] received complaints regarding
their behavior. Therefore, [the Town] did not irrationally treat [Willis]
differently from anyone else." J.A. 220.

Even assuming that the absence of complaints about others would
establish that Willis was not similarly situated to the other patrons, an
issue we need not decide today, we conclude that the granting of summary
judgment was premature. Although the Town asserts in its argument
that it received no complaints about any other Depot dancer,
there is no evidence in the record demonstrating the absence of complaints.

Whether complaints were or were not received is a matter
wholly within the knowledge of the Town. Because the district court
granted summary judgment before allowing any discovery, Willis had
no opportunity to demonstrate that others situated similarly in this
regard were not treated similarly. See Harrods, Ltd. v. Sixty Internet
Domain Names, 302 F.3d 214, 246-47 (4th Cir. 2002) ("Generally
speaking, sufficient time for discovery is considered especially important
when the relevant facts are exclusively in the control of the
opposing party." (internal quotation marks and alteration omitted)).5
And because Willis's Rule 56(f) affidavit alerted the district court to
Willis's specific need for this information, the district court abused its
discretion by denying Willis's properly supported motion seeking
additional discovery. See Fed. R. Civ. P. 56(f) ("Should it appear
from the affidavits of a party opposing the motion that the party cannot
for reasons stated present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for judgment
or may order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make such
other order as is just."); Strag v. Board of Trustees, 55 F.3d 943, 953
5The Town filed its motion to dismiss before a scheduling order was
entered and thus before the parties conferred as required by Rule 26(f)
of the Federal Rules of Civil Procedure, and no conference was held
before the district court converted the motion to one for summary judgment.
Accordingly, this case was dismissed before the parties were ever
authorized to begin conducting discovery. See Fed. R. Civ. P. 26(d)
("Except in categories of proceedings exempted from initial disclosure
under Rule 26(a)(1)(E), . . . , a party may not seek discovery from any
source before the parties have conferred as required by Rule 26(f) . . . .").
(4th Cir. 1995) (holding that party seeking additional discovery must
identify a Rule 56(f) "affidavit presented to the district court that particularly
specifie[s] legitimate needs for further discovery." (internal
quotation marks omitted)). Accordingly, we vacate the district court's
grant of summary judgment in favor of the Town on Willis's class-ofone
Equal Protection claim.

V.

Willis contends that the banishment from the Depot impermissibly
infringed upon her constitutional right to travel and her right to be in
a public forum,6 thus supporting a substantive due process claim.

A.

"[T]he Due Process Clause specially protects those fundamental
rights and liberties which are, objectively, deeply rooted in this
Nation's history and tradition, and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they were
sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
(citations and internal quotation marks omitted).

The Supreme Court's cases "have firmly established that the right
of interstate travel is constitutionally protected." Griffin v. Breckenridge,
403 U.S. 88, 105 (1971); see also United States v. Guest, 383
U.S. 745, 757 (1966) ("The constitutional right to travel from one
State to another, and necessarily to use the highways and other instrumentalities
of interstate commerce in doing so, occupies a position
fundamental to the concept of our Federal Union.").

Whether there is a right to intrastate travel that is sufficiently fundamental
to fall within the scope of the substantive Due Process
clause, however, is not entirely clear. The Supreme Court has not
expressly recognized a fundamental right to intrastate travel, see
Memorial Hosp. v. Maricopa County, 415 U.S. 250, 255-56 (1974)
(declining to consider whether there is a constitutional difference
between intrastate and interstate travel), but there is language in various
cases that could be viewed as supporting the existence of such a
right. See, e.g., Kolender v. Lawson, 461 U.S. 352, 358 (1983) (noting
that statute requiring those wandering the streets to provide police
upon request with credible and reliable identification "implicates consideration
of the constitutional right to freedom of movement"); Williams
v. Fears, 179 U.S. 270, 274 (1900) ("[T]he right to remove
from one place to another according to inclination, is an attribute of
personal liberty, and the right, ordinarily, of free transit from or
through the territory of any state is a right secured by the 14th
Amendment and by other provisions of the Constitution.").

As to Willis's narrower claim of a fundamental right to be in a public
forum, there again is no definitive answer by the Supreme Court,
but there are statements indicating that at least some members of the
Court might agree with Willis. See, e.g., City of Chicago v. Morales,
527 U.S. 41, 54 (1999) (stating that individual liberty protected by the
Due Process Clause includes the "decision to remain in a public
place") (plurality opinion of Stevens, J., joined by Souter and Ginsburg,
JJ.); Papachristou v. City of Jacksonville, 405 U.S. 156, 164
(1972) (stating that wandering or strolling are activities that "are historically
part of the amenities of life as we have known them").

The circuit courts have not reached any clear answer on these questions
either. Compare Johnson v. City of Cincinnati, 310 F.3d 484,
498 (6th Cir. 2002) ("In view of the historical endorsement of a right
to intrastate travel and the practical necessity of such a right, we hold
that the Constitution protects a right to travel locally through public
spaces and roadways."); and Lutz v. City of York, 899 F.2d 255, 259-
68 (3d Cir. 1990) (discussing Supreme Court's less-than clear right-to-travel cases, and ultimately concluding that the right to intrastate
travel is a fundamental right protected by the Due Process clause)
with Doe v. City of Lafayette, 377 F.3d 757, 770-71 (7th Cir. 2004)
(en banc) (canvassing cases and rejecting claim that sex offender's
"‘right' to go the City's parks which he wishes to use for allegedly
innocent, recreational purposes" is a fundamental liberty interest).
Ultimately, however, we conclude that in this case, there is no reason
to decide whether the right to intrastate travel or the right to
access a public forum are fundamental rights protected by the substantive
component of the Due Process Clause. As a general rule,
courts
must be reluctant to expand the concept of substantive due
process because guideposts for responsible decision-making
in this uncharted area are scarce and open-ended, which
means that the courts must exercise the utmost care whenever
we are asked to break new ground in this field, lest the
liberty protected by the Due Process Clause be subtly transformed
into the policy preferences of judges.

Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999) (en banc)
(citations, internal quotation marks, and alterations omitted). Accordingly,
"where a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these
claims." County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998)
(internal quotation marks and alteration omitted).

Whether we view Willis's substantive due process claim as involving
a right to travel or a right of access to a public forum, the claim
in reality mirrors her Olech Equal Protection claim, in that it centers
on the arbitrary denial of access to public events held in a
government-owned forum. Because Willis's substantive due process
claim thus "fully overlaps" her Equal Protection claim, the district
court properly rejected the due process claim. Edwards v. City of
Goldsboro, 178 F.3d 231, 248 n.11 (4th Cir. 1999) (affirming dismissal
of substantive due process claims where those claims "fully
overlap[ped]" the plaintiff's First Amendment claims).

B.

We turn now to Willis's procedural due process claims. The Due
Process clause of the Fourteenth Amendment provides that no State
shall "deprive any person of life, liberty, or property, without due process
of law." (Emphasis added by MoreLaw) U.S. Const. amend. XIV. Although the language of the
clause may be "cryptic and abstract[,] . . . there can be no doubt that
at a minimum [it] require[s] that deprivation of life, liberty or property
by adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case." Logan v. Zimmerman Brush
Co., 455 U.S. 422, 428 (1982) (citation and internal quotation marks
omitted). If the plaintiff has "los[t] something that fits into one of the
three protected categories [of] life, liberty, or property," Mallette v.
Arlington County Employees' Supp. Ret. Sys. II, 91 F.3d 630, 634 (4th
Cir. 1996), then the question that must be answered is whether the
plaintiff "receive[d] the minimum measure of procedural protection
warranted under the circumstances." Id.

Willis contends that the procedural protections of the Due Process
were triggered in the case because the banishment from the Depot
deprived her of her First Amendment right to receive information, see
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 500 (1952) (explaining
that "the liberty of speech and of the press which the First Amendment
guarantees against abridgment by the federal government is
within the liberty safeguarded by the Due Process Clause of the Fourteenth
Amendment from invasion by state action."), and because it
infringed on her right to travel. In our view, however, what Willis
couches as a First Amendment liberty interest claim is better viewed
as a liberty interest - her right to access a public forum. As we have
indicated above, whether such a right is a fundamental liberty interest
protected by the due process clause is far from clear.

Mindful of the need to move cautiously when considering novel
due process questions, we decline to answer these questions in this
case. Willis's procedural due process claim adds nothing to her case
against the Town. That is, we can conceive of no set of circumstances
under which a jury might reject her Olech Equal Protection claim yet
find in her favor on a procedural due process claim, nor is there reason
to believe that the damages available to Willis would differ if
awarded on a due process claim rather than an Equal Protection claim.

Thus, even assuming that the district court erred by dismissing Willis's
procedural due process claim, Willis has suffered no prejudice
from that error.

VI.

Finally, we turn to Willis's appeal of the district court's denial of
her request for a preliminary injunction that would require the Town
to re-admit Willis to Depot events.

When considering a request for a preliminary injunction, a court
must consider "(1) the likelihood of irreparable harm to the plaintiff
if the preliminary injunction is denied, (2) the likelihood of harm to
the defendant if the requested relief is granted, (3) the likelihood that
the plaintiff will succeed on the merits, and (4) the public interest."
Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812
(4th Cir. 1991) (internal quotation marks omitted).

The district court rejected Willis's request for a preliminary injunction
by concluding that Willis had not demonstrated irreparable harm
or a likelihood success on the merits. Given the discretionary nature
of a preliminary injunction, see, e.g., Microstrategy Inc. v. Motorola,
Inc., 245 F.3d 335, 339 (4th Cir. 2001), and mindful that the district
court did not explicitly address Willis's Equal Protection claim in its
order denying her motion for a preliminary injunction, we believe it
prudent to give the district court the opportunity to re-consider the
request for an injunction. Accordingly, we vacate the district court's
denial of a preliminary injunction and we remand for the district court
to consider, in accordance with the substantive legal principles we
have set forth today, whether an injunction is warranted. See Richmond,
Fredicksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 254
(4th Cir. 1993) (reversing denial of preliminary injunction and
remanding for reconsideration); Rum Creek Coal Sales, Inc. v. Caperton,
926 F.2d 353, 367 (4th Cir. 1991) (same).

VII.

Accordingly, for the foregoing reasons, we affirm the district
court's grant of summary judgment in favor of the Town on Willis's
First Amendment claims and her substantive and procedural due process
claims. We vacate the district court's grant of summary judgment
in favor of the Town as to Willis's class-of-one Equal Protection
claim, and we remand for further proceedings on those claims. We
likewise vacate the district court's denial of Willis's request for a preliminary
injunction and we remand for reconsideration of that request.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED