Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94-C-1118 John W. Reynolds, Judge.
Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.
Plaintiffs Satellite News and Video, Inc. ("Satellite") and Phil Matney brought suit in district court, seeking to have a Kenosha County, Wisconsin "open-booth" ordinance declared unconstitutional and to obtain an injunction prohibiting its enforcement. The ordinance requires that movie-viewing booths at "adult entertainment" establishments, such as the one owned by Satellite and patronized by Matney, be totally accessible from a public area and have at least one side totally open to a lighted public aisle. The district court granted summary judgment in favor of Kenosha County ("County") and the plaintiffs appeal. We affirm.
Satellite owns and operates an "adult entertainment" business in Kenosha County, Wisconsin, which displays sexually explicit but non-obscene films and videotapes in small, single-person viewing booths. Each booth is equipped with a monitor connected to several videotape players. By depositing a token in a device located within each booth, patrons of Satellite can activate the monitors and choose one of the several videotapes or films offered. The video booths are specifically designed and built so that persons standing outside the booths cannot determine the content or the specific nature of the film being viewed. Phil Matney is a resident of Kenosha County and a patron of Satellite. Matney does not wish to have the content of the videos he views and listens to revealed to persons passing by the booths.
In 1992, the Kenosha County Board of Health issued regulation HD-1.01-1, which establishes standards for the construction and maintenance of booths, rooms, or cubicles available for the private viewing of "adult entertainment" at "adult-oriented" establishments. The stated purpose of the regulation is to preserve health, prevent the spread of AIDS and other communicable or sexually transmitted diseases, and prevent unsanitary, unsafe and unhealthy conditions. Specifically, the regulation states:
(1) PURPOSE. It is a lawful purpose of the Kenosha County Board of Health to enact rules and regulations as are necessary for the preservation of health and to prevent the spread of AIDS and other communicable or sexually transmitted diseases in Kenosha County. It has been found by localities throughout the State of Wisconsin, particularly Milwaukee, Racine, Waukesha, Delafield, and Kenosha, as well as communities around the country, that many adult-oriented establishments install movie viewing booths with doors in which patrons view adult-oriented videotapes, movies, films and other forms of adult entertainment, and that such booths have been and are being used by patrons to engage in sexual acts resulting in unsanitary, unhealthy and unsafe conditions in said booths and establishments. This regulation establishes standards for booth construction and maintenance in order to prevent the spread of AIDS and other communicable or sexually transmitted diseases.
The Board considered evidence from the sheriff's departments in Kenosha County and other communities in reaching its conclusion that activity occurring in booths at adult oriented establishments leads to unhealthy and unsanitary conditions and to the transmission of AIDS and other sexually transmitted and communicable diseases.
Under the regulation, adult entertainment viewing booths must be "totally accessible to and from aisles and public areas . . . and shall be unobstructed by any door, lock, curtain, blind, or other control-type devices." HD-1.10-1(3)(a). Further, each booth "shall be separated from adjacent booths . . . by a wall" and "shall have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying the same." HD-1.10-1(3)(b). The regulation also speaks to the lighting in and around the booths as well as to the color, texture, and material of booth walls and floors. In addition, the regulation provides that only one individual occupy a booth at any time and that no occupant shall "engage in any type of sexual activity, cause any bodily discharge or litter while in the booth." HD-1.10-1(3)(c). The regulation does not attempt to restrict or control in any way the content of the adult videos shown.
Satellite received several citations for violating HD-1.10-1 and the County has threatened to continue enforcing the regulation, thereby prompting the instant litigation. Satellite and Matney's complaint alleged that the open booth regulation violates their First Amendment rights because it 1) impermissibly chills their "expressive privacy rights" by revealing the content of the protected expression they wish to disseminate and receive and 2) because it imposes a content-based financial burden on Satellite's protected expression. The plaintiffs also alleged that the regulation is not reasonably related to a legitimate government interest. The County moved for summary judgment and the district court granted its motion, finding that the proper question was whether the ordinance was a valid time, place, and manner restriction, which the court answered in the affirmative. The court also concluded that there is no "expressive privacy right" to view adult entertainment at public establishments in seclusion and anonymity and, additionally, that the regulation did not impose a constitutionally impermissible financial burden on Satellite.
Satellite and Matney contend on appeal that the district court erred in granting the County summary judgment on their First Amendment claims. *fn1 We review a district court's grant of summary judgment de novo. Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 931 (7th Cir. 1995). Summary judgment should be granted when the pleadings and supplemental materials present no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Although we draw all reasonable inferences in favor of the party opposing a motion for summary judgment, this party may not simply rest on its pleadings or on mere conclusory allegations to avoid summary judgment; rather the non-moving party must come forward with evidence to show the existence of each element of its case on which it will bear the ...