IX, XI and XII--in Rule 12(b)(6) terms. They will be dealt with in sequence.
Counts I and II
Counts I and II assert that City lacks power to effect the custodial arrest of Admiral's dancers based upon nonjudicial determinations (that is, decisions by police officers) as to the content of their dancing (viewed as expressive conduct). Plaintiffs contend that such custodial arrests are prior restraints on constitutionally-protected speech because the dancers are prevented from engaging in their expressive conduct for the duration of the arrest. City responds that plaintiffs have failed to state a cause of action upon which relief may be granted because the Complaint's allegations, taken as true, do not amount to prior restraint.
Prior restraints on speech may occur in two ways. First, "governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated" ( Berg v. Health & Hosp. Corp. of Marion County, Ind., 865 F.2d 797, 801 (7th Cir. 1989), quoting earlier decisions). That rule has been applied to strike down licensing schemes as unconstitutional prior restraints on speech where officials are given the power to restrain speech before it even occurs and is viewed by the officials (see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-53, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975)). Second, a prior restraint may occur where communication is suppressed, either directly or by inducing excessive caution in the communicator, without a prior judicial determination that the speech is unprotected by the First Amendment ( Alexander v. United States, 125 L. Ed. 2d 441, 113 S. Ct. 2766, 2771-72 (1993); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973)). Of course any such prior judicial determination must be accompanied by the "requisite procedural safeguards" ( Alexander, 113 S. Ct. at 2772), including the requirement that any extrajudicial suppression must be based on something more than probable cause to believe the expression is obscene (id.; Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 66, 103 L. Ed. 2d 34, 109 S. Ct. 916 (1989) ("our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove [speech] from circulation").
Prior restraint law is grounded on the premise that "a State is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech" ( Marcus v. Search Warrant, 367 U.S. 717, 731, 6 L. Ed. 2d 1127, 81 S. Ct. 1708 (1961)). Not surprisingly, then "any system of prior restraints of expression comes to [the courts] bearing a heavy presumption against its constitutional validity" ( Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963), holding that systems of prior restraint are tolerated only where operated under judicial superintendence and where an almost immediate judicial determination of the validity of the restraint is assured).
This is not of course to say that prior restraints are per se unconstitutional ( Southeastern Promotions, 420 U.S. at 558). To find a system of prior restraint unconstitutional, it must be shown to have taken place without "procedural safeguards designed to obviate the dangers of a censorship system" ( id. at 559), such as a brief period of restraint and assurance of a prompt final judicial determination of whether the speech is in fact protected by the Constitution ( id. at 560).
Determinations as to whether any given system of civil or criminal sanction is an improper prior restraint do not end the analysis, however. Even if that question gets a negative answer, if it is still true that "it was conduct with a significant expressive element that drew the legal remedy in the first place," the system is still subjected to "least restrictive means" scrutiny to determine its constitutionality ( Arcara v. Cloud Books, Inc., 478 U.S. 697, 706, 92 L. Ed. 2d 568, 106 S. Ct. 3172 (1986)). Under such scrutiny the State can regulate the content of constitutionally protected speech only (1) to promote a compelling interest and (2) if it chooses the least restrictive means to further that interest ( Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989)).
It will be recalled that on February 8, 1991 the police, consistent with their own regular pattern of conduct in such situations, arrested all of the dancers present at Admiral's premises based on the officers' belief that the dancers' expressive conduct was obscene and hence not protected by the Constitution. Count I is based on the arrest of dancers who had already begun performing that evening, while Count II concerns the arrest of dancers who were yet to perform.
Count II clearly states a claim. Any arrest of dancers before they perform, based on a belief that the content of such performances will be obscene, is a prior restraint no different from that implemented by the defendants (and struck down by the Court) in Lakewood. Advance custodial arrests based on the anticipated content of expression are plainly restraints on speech. If plaintiffs were to deliver as their Complaint has advertised, they would be entitled to the relief they request. Thus a front-end dismissal of Count II is not in order.
Although Count I presents a slightly closer question, there too plaintiffs have sufficiently stated a claim. Again the dancers' arrests were based on a nonjudicial determination that the content of their expression was constitutionally unprotected obscenity. That distinguishes this case from Arcara, where the seizures were based upon conduct not associated with expression and where such seizures therefore raised no First Amendment concerns. Whether or not the arrests here fit the classic prior restraint mold, the Complaint adequately alleges that custodial arrest of the dancers is not the "least restrictive means" of regulating what the parties agree is First-Amendment-protected speech (the Arcara test).
Of course City will be free to attempt to prove that custodial arrests are the least restrictive means of serving some compelling interest, or that its system of such arrests is accompanied by adequate safeguards to raise it from impropriety. That, however, is for the future--for the present Count I survives. This may mean that City's police will have to deal with exotic dancers in a different fashion, but it has long been the case that the "regulation by the States of obscenity [must] conform to procedures that will ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line" ( Bantam Books, 372 U.S. at 66).
Count III advances a Section 1983 damage claim based on City's alleged pattern and practice of harassment and retaliation against persons and businesses engaged in sexually oriented expression, as manifested by effecting custodial arrests such as those at Admiral on February 8, 1991. According to the Complaint City, through its agents at the highest levels of the Chicago Police Department, has had knowledge of this pattern and practice but has failed to rectify or prevent the alleged unconstitutional practices. City contends that Count III fails to state a claim because plaintiffs have not properly alleged the existence of a "custom."
In this instance a post-briefing development has undercut City's position. Leatherman, 113 S. Ct. at 1162-63 has drawn the fangs of Strauss v. City of Chicago, 760 F.2d 765, 767-69 (7th Cir. 1985), which had previously required particularized factual pleading by plaintiffs seeking to implicate local government itself in Section 1983 responsibility for the acts of its employees. It has thus once again been confirmed by the Supreme Court that the notice-pleading regime of the Rules, and not a fact-pleading approach, remains the order of the day.
Here the Complaint alleges that City, through its Police Department, has carried out a policy of effecting custodial arrests only of nude or partially nude performers, while at the same time issuing only citations to those distributing allegedly unlawful printed materials. Its further allegation of a long-standing pattern and practice of such conduct is enough under Leatherman to withstand a motion to dismiss.
This opinion has already described the Count IX claim that Code § 4-4-060, delineating the public place of amusement licensing procedures, constitutes an illegal prior restraint of First Amendment expression because City has an unconstitutionally long period in which to grant or deny a license, during which time the applicant is not allowed to conduct its speech activities. City argues that the waiting periods are not as long as those alleged by plaintiffs, nor are they unconstitutional in length.
This opinion has also adverted to the teaching of Lakewood, 486 U.S. at 757 "that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship." In that respect it has long been held that any such licensing system must take place within a "specified brief period" and "must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license" ( Freedman v. Maryland, 380 U.S. 51, 59, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965)).
Plaintiffs allege that Code § 4-4-060 allows City more than 100 days to approve or deny a license application and is accompanied by no procedure providing any prompt judicial review of a denial. It is of no moment that the parties disagree on the facts in that respect, for Rule 12(b)(6) focuses on what plaintiffs have alleged--and proof of those allegations would entitle plaintiffs to the relief that they seek.
Count XI challenges the constitutionality of City's power to revoke the licenses of persons conducting current speech activities, based on the fact that some past speech has been unprotected and illegal. Code § 4-4-280 permits City to revoke the licenses of entities such as Admiral (and thus to prevent the dissemination of future speech) due to past violations involving the content of such speech. City responds that because Code § 4-4-280 allows the revocation of licenses only as punishment for past illegal conduct, its application to licensees such as Admiral is proper despite their speech activities.
At least since the seminal First Amendment decision in Near v. Minnesota, 283 U.S. 697, 713, 75 L. Ed. 1357, 51 S. Ct. 625 (1931) it has been clear that governmental prohibition of future protected expression based on findings of past or present undesirable conduct is "the essence of censorship." Accord, such cases as Vance v. Universal Amusement Co., 445 U.S. 308, 311 n.3, 63 L. Ed. 2d 413, 100 S. Ct. 1156 (1980) ("When that future conduct may be protected by the first amendment, the whole system must fail because the dividing line between protected and unprotected speech may be 'dim and uncertain'").
That principle does not, however, preclude imposing a prohibition on future protected speech as a punishment for past speech that has been adjudicated to be illegal ( Alexander, 113 S. Ct. at 2772). In that way the law draws a line between prior restraints and later punishments, permitting only the latter to justify such prohibitions on future speech as the forfeiture of expressive material (id. at 2773). But a necessary precondition to placing governmental action on the subsequent-punishment side of that line is that the past speech that forms the basis of the prohibition must have been submitted for a prior judicial determination, together with all the required safeguards, and thereby found to be illegal speech (id.). Thus governmental action that punishes a speaker for conduct that has been judicially determined to be obscene is classified as subsequent punishment. But where future protected speech is sought to be prohibited based on the content of past speech without such a prior judicial determination that the past speech is obscene, that would constitute a prior restraint.
Count XI alleges that City is attempting to revoke Admiral's licenses based at least in part on past conduct that City asserts is obscene. Furthermore, Count XI goes on, that past conduct has never been presented for a judicial determination as to whether it came within the protection of the First Amendment. To the extent that City is indeed attempting to revoke Admiral's license based upon judicially untested allegations of unprotected speech activities, plaintiffs state a valid cause of action under Count XI.
It should be made plain, however, that any revocation of licenses based on allegations of liquor code violations and other activities that are not associated with speech presents no constitutional questions and would not alone constitute a cause of action under Count XI. Hence Count XI survives City's motion to dismiss only to the extent that City's revocation hearing is based on allegations of past illegal speech that has not been judicially determined to be obscene.
Finally, Count XII asserts the unconstitutionality of the procedures used by City to revoke the licenses, pursuant to Code § 4-4-280, of entities involved in the dissemination of constitutionally protected speech. In that respect plaintiffs allege that Code § 4-4-280 (which alone delineates the procedures to be used in revocation hearings) does not provide the procedural safeguards necessary for governmental agencies to prohibit future protected speech. For its part City contends that the requisite procedural safeguards are implicitly (though not explicitly) incorporated into Code § 4-4-280.
Essentially plaintiffs' position is that Code § 4-4-280 lacks several of the procedural safeguards required to obviate the dangers of a censorship system. Their allegations in that regard, which are not only required to be accepted on a Rule 12(b)(6) motion but are apparent from a reading of the section itself, may alone provide a sufficient basis on which plaintiffs could recover the relief they seek. City's only response is that the requisite procedural safeguards are implicit in the administrative decision-making process as a whole.
Even if that were true (an issue that need not be decided at this time), plaintiffs' allegations if proved would entitle them to relief: In the speech context "the limits the city claims are implicit in its law [must] be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice" ( Lakewood, 486 U.S. at 770). On the current motion it must be accepted that none of those factors exists with respect to Code § 4-4-280, so that Count XII states a valid cause of action on that basis alone.
Daley and Mardis are dismissed as defendants (albeit purely on procedural grounds). Counts VII, VIII and X are dismissed as moot (again solely on technical grounds). But City's motion to dismiss Counts I through III, IX, XI and XII is denied in its entirety, and City is ordered to answer those counts on or before September 16, 1993.
Milton I. Shadur
Senior United States District Judge
Date: August 30, 1993