In Sixth Circuit, Daubert Visits a 'Nightclub'

By Robert Ambrogi Esq

When we think of Daubert, we think of stuffy courtrooms filled with formally attired judges, lawyers and witnesses. However, in a recent case out of the 6th U.S. Circuit Court of Appeals, Daubert was found visiting a group of Memphis adult nightclubs featuring scantily clad dancers. Regrettably for Daubert, the visit did not turn out well.

What brought Daubert to the seamier side of the city was a First Amendment challenge to a Tennessee law regulating adult-oriented businesses. At issue in the case was the extent to which the state, in enacting such a law, must base its rationale on evidence sufficient to meet a Daubert-like definition of scientific validity.

Tennessee enacted the county-option law to target what it identified as the harmful secondary effects associated with adult-oriented businesses, such as crime, the spread of sexually transmitted diseases and decreased property values. The law required these businesses to be licensed and it prohibited them from allowing nudity, sexual contact and the sale or consumption of alcohol.

When Shelby County adopted the law in 2007, a group of Memphis businesses that collectively own a substantial portion of the city’s adult nightclubs filed a First Amendment lawsuit seeking to enjoin and invalidate the law, known as the Tennessee Adult-Oriented Establishment Registration Act of 1998. The district court granted summary judgment against the businesses on two of their three counts and then dismissed their final count after a bench trial.

Businesses Say State Used ‘Shoddy’ Data

On appeal to the 6th Circuit, the businesses argued that the act should be struck down because the data and studies the state relied on to justify it were “shoddy.” They attacked the methodology underlying the studies used by the state and offered their own statistical data showing no correlation between the existence of adult-oriented businesses and the secondary effects the state sought to avoid.

The 6th Circuit, while acknowledging that First Amendment jurisprudence recognizes nude dancing as a form of symbolic speed or expressive conduct, noted that it is a type of expression that falls “within the outer ambit of the First Amendment’s protection.”

For that reason, the constitutionalityof laws restricting such conduct is to be determined under an “intermediate-scrutiny” standard, the court said. Under this standard, the law would be upheld as long as it was designed to serve a substantial government interest and did not unreasonably limit alternative avenues of communication.

The state must have had a “reasonable evidentiary basis” for concluding that the law would have the desired effect, the court explained. “Although not extraordinarily high, this evidentiary burden requires that the state show that the evidence upon which it relied was ‘reasonably believed to be relevant to the problem’ that the entity sought to address.”

Seeking to prove that the state did not, in fact, have a reasonable evidentiary basis to support the law, the businesses submitted a 36-page expert report by Dr. Daniel Linz. In the report, Dr. Linz went through each of the studies relied on by the state and explained how they were either methodologically flawed or irrelevant. The foundational premise of his report, as the 6th Circuit described it, was that “a study must meet a Daubert-style definition of scientific validity before a state may reasonably rely upon it for purposes of regulating adult-oriented businesses.”

Daubert Premise ‘Flatly Wrong’

Unfortunately for the businesses, the 6th Circuit found this argument not the least bit titillating. To the contrary, the court called it “flatly wrong.”

“Neither the Supreme Court nor this court has ever held that the First Amendment demands direct empirical support, let alone a specific methodology, to sustain a regulation on erotic expression,” the court explained. “If a governmental entity need not rely upon direct empirical evidence, a fortiori it need not rely upon direct empirical evidence that meets a particular commentator’s threshold of scientific validity.”

This does not mean that a government can rely on “shoddy” data, the court cautioned, or regulate erotic speech based upon evidence that is “nongermane or, worse, nonexistent.” Here, however, the state and the county “relied upon a vast array of germane, widely accepted evidence in passing their respective regulations,” the court found.

The court noted that other federal circuits had similarly rejected attempts to use Dr. Linz’s analysis to strike down adult-business regulations. While that does not mean that Dr. Linz’s work is flawed, the court said, it is nonetheless a minority viewpoint among those who have studied the secondary effects of adult businesses.

“At best, the appellants have demonstrated that the State of Tennessee and Shelby County faced a choice between two reasonable alternative viewpoints when assessing the need for the challenged regulations,” the court concluded. “The appellants effectively ask us to second-guess the deliberative judgments of both legislative bodies. We decline to do so.”

With that, this group of adult nightclubs was stripped of its last thread of hope for injunctive relief. As for Daubert, he was soon back in the courtroom where he belonged, looking a bit haggard from his detour into debauchery.

The case is Entertainment Productions, Inc. v. Shelby County, Case No. 11-6396 (6th Cir. July 9, 2013).

Do you think the state should have to meet a higher evidentiary standard in order to regulate adult-oriented businesses than that which the court allowed here?  If Daubert is too high, what is the minimum the state should have to meet?

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Robert Ambrogi Esq

We are proud to partner with an author of Bob’s caliber to provide exclusive articles for our legal clients and leading industry experts. Robert J. Ambrogi is a news media veteran and the only person ever to hold the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers Weekly USA. He is currently a Massachusetts lawyer who represents clients at the intersection of law, media and technology. He is also internationally known for his writing and blogging about the Internet and technology. Media and Technology Law Bob represents a range of businesses and individuals, concentrating in print and electronic media companies and the editorial, sales, marketing and technology professionals who work in them. He also counsels businesses and individuals in employment matters. Arbitration and Mediation An established professional in alternative dispute resolution, Bob has been an arbitrator since 1994, focusing on labor and employment and securities disputes. A mediator in a range of civil disputes, Bob completed the training required by Massachusetts law to protect confidentiality.

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