Florence v. Town of ...

United States District Court for the Eastern District of Wisconsin · 2002 · Torts

TortsFirst AmendmentSection 1983StandingMootnessOverbreadthNude dancingnude dancing

Facts

Raissa Clarkson owned the Gold Nugget Tavern in Florence, Wisconsin, which featured partially nude dancers. The Town enacted an ordinance making it unlawful in licensed premises for performers or others to engage in live acts, demonstrations, dances, or exhibitions while exposing specified body parts, requiring substantially more coverage than pasties and G-strings. Clarkson alleged the ordinance threatened her liquor license, disrupted a planned sale of her tavern, reduced business, and caused emotional distress. After suit was filed, the Town agreed not to enforce the ordinance, later resolved not to enforce it, and eventually repealed it.

Issue

Whether the repealed ordinance still presented a live controversy because of Clarkson's damages claim, and whether the ordinance violated the First Amendment by imposing an overbroad and insufficiently tailored clothing requirement on expressive nudity in licensed premises. Also at issue was whether Clarkson could pursue § 1983 liability and damages based on the ordinance's enactment.

Rule

A plaintiff has standing when she shows a concrete, particularized injury fairly traceable to the challenged law and likely redressable by a favorable decision, and repeal of a challenged law does not moot a case so long as a live damages claim remains. A content-based regulation aimed at expressive nudity that is not a general public nudity ban must at least satisfy intermediate scrutiny and fails if it restricts more expression than necessary to further asserted secondary-effects interests; if it reaches a substantial amount of expressive nudity not plausibly associated with secondary effects and lacks a narrowing construction, it is substantially overbroad. Under § 1983, a plaintiff deprived of a constitutional right may recover nominal damages without proof of actual injury and compensatory damages upon proof of actual loss or emotional distress.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel owns Harbor Moon Lounge in Duluth, Minnesota, where occasional semi-nude performances are part of the entertainment. After the city enacts an ordinance banning certain exposed body parts during performances in liquor-licensed venues, a licensing clerk tells Nina that continuing the shows could cost her liquor license; Nina stops advertising the shows and sues before any citation is issued.

Does Nina most likely have Article III standing to challenge the ordinance?

Explanation. Standing requires injury in fact, causation, and redressability. A threatened invasion of a legally protected interest can qualify as concrete injury, and the opinion treated the threat of sanctions, including loss of a liquor license, as sufficient. The plaintiff need not await prosecution, nor prove large economic loss, so long as she has an actual stake in the outcome. (Derived from Florence v. Town of ... (n.d.).)