TORRUELLA, Circuit Judge.
This case directs our attention to the extent by which a town may abridge expressive activity, protected under the First Amendment and the Massachusetts Constitution, as a valid exercise of its zoning power. The Town of Mendon, Massachusetts ("Mendon") has set forth a veritable maze of zoning restrictions that are singularly applicable to adult-entertainment businesses. Owning one of the few parcels of land within Mendon city limits still available for the conduct of such business, Showtime Entertainment, LLC ("Showtime"), attempted to navigate these many restrictions. The result: Showtime received an adult-entertainment license but found its preferred building plans circumscribed in both size and height, its proposed operating hours curtailed, and its ability to receive a license to sell alcohol foreclosed.
Before the district court, Mendon cast these restrictions as appropriate measures by which it sought to control only the secondary effects uniquely related to the expressive activity-altered town aesthetics, heavy traffic flow, and increased crime. Showtime retorted that the restrictions infringed on its ability to present live nude dancing to a degree that violated the Federal Constitution and the Massachusetts Declaration of Rights.
Viewing Showtime's suit as a facial challenge to the bylaws, the district court entered summary judgment in favor of Mendon,
Because this appeal stems from a grant of summary judgment, we begin by setting forth the facts in the light most favorable to Showtime, the losing party below. Prescott v. Higgins, 538 F.3d 32, 38 (1st Cir.2008).
In May of 2008, at its annual town meeting, Mendon amended its zoning bylaws. Of relevance to this litigation was the addition of section 5.01, which created an Adult-Entertainment Overlay District, limiting the location of any adult-entertainment business — a category that includes adult bookstores, video stores, paraphernalia shops, and businesses showing live nude dancing — to four specific parcels of land within city limits. These contiguous parcels are located at 41, 43, 47, and 49 Milford Street, and they all border a state highway, Route 16. The text of section 5.01 included a preamble setting forth its purpose:
Town of Mendon Zoning By-Laws, § 5.01(b).
Adult-entertainment businesses seeking to operate in Mendon must also abide by licensing requirements defined in state law. See Mass. Gen. Laws ch. 140, § 183A (requiring a license to operate an adult-entertainment business in the Commonwealth of Massachusetts); id. § 1 (stating that a town's Board of Selectmen will serve as its licensing authority). On June 2, 2008, acting pursuant to their authority as the town's licensing board, The Mendon Board of Selectmen adopted a set of regulations
On June 10, 2008, soon after the passage of these regulations, Showtime applied for a license to operate an adult-entertainment business (presenting live nude dancing) on a parcel of land within the Overlay District. Showtime's proposed building plan included an 8,935-square-foot "Adirondack style" structure with space to accommodate 244 patrons and 25 employees, to be accompanied by an 82-space parking lot.
At a September 15, 2008 town meeting, several residents spoke out against Showtime's pending proposal, citing their fear that the facility would exacerbate traffic concerns along Route 16. Also in early September 2008, Mendon citizens petitioned the Board of Selectmen to enact additional bylaws (1) restricting the maximum size and height allowances for buildings operating adult-entertainment businesses; (2) limiting the operating hours of such businesses; and (3) banning the sale or consumption of alcohol on their premises. The stated purposes for these additional bylaws, respectively, were to (1) protect Mendon's "historically rural atmosphere"; (2) support traffic safety; and (3) reduce crime associated with the combination of intoxication and adult entertainment.
The next month, Mendon issued decisions regarding both Showtime's license application and the citizen-proposed bylaws. First, on October 1, 2008, the Board of Selectmen denied Showtime's license request, citing concerns about the potential negative health and safety effects of increased traffic, noise pollution, and criminal activity. Then, on October 7, 2008, Mendon held a special meeting concerning the petition for additional bylaws restricting the operation of adult-entertainment businesses. At this meeting, the citizens' group Speak Out Mendon voiced their support of these proposed amendments as a means of curbing the perceived adverse effects of adult-entertainment businesses.
Mendon residents voted to approve the bylaws, enacting additional zoning restrictions requiring that all adult-entertainment businesses (1) have a facility no bigger than 2,000 square feet; (2) have a facility no taller than fourteen feet; and (3) open no earlier than 4:30 p.m. on days when school is in session. See Town of Mendon Zoning By-Laws, § 5.01(i)(i-ii),(iv). The written justifications for these restrictions were to maintain Mendon's "historically rural atmosphere," to ensure traffic safety, and "to provide an opportunity for all elementary school buses to finish student bus routes." Id. § 5.01(i)(i),(iv). No other business in Mendon, including any operating within the Adult-Entertainment Overlay District, is subject to the same zoning restrictions.
At the same time, Mendon's general bylaws were also amended, so as to forbid the granting of an alcohol sales license to any adult-entertainment business and to
The Massachusetts Attorney General reviewed the proposed amendments and, on January 20, 2009, issued an opinion letter approving the zoning bylaws restricting size, height, and operating hours of adult-entertainment businesses in Mendon. The Attorney General also approved the prohibition of the sale and consumption of alcohol within adult-entertainment establishments based on the conclusion "that the validity of these sections is fairly debatable, and [] they are not clearly in conflict with any statute or constitutional provision." See Letter from Attorney General Martha Coakley to Margaret Bonderenko, Town Clerk, January 20, 2009, at 2. This letter cautioned, however, that the Attorney General's approval process "does not and cannot include the kind of factual inquiry a court might make in resolving an `as applied' constitutional challenge."
Following the adoption of these new bylaws, Showtime renewed its application for an adult-entertainment license, presenting revised building plans to the Board of Selectmen. This time, Showtime proposed a single-story, fourteen-foot-high, 2,000-square-foot building that would accommodate 74 patrons, be staffed by 20 employees, and feature 103 parking spots. At the public hearings regarding this proposal, Showtime stated that it would not seek a liquor license and would not open for operation prior to 4:30 p.m. Showtime also presented a traffic study performed by Greenman-Pedersen, Inc. (the "Greenman Study"), which concluded that "[p]eak-hour traffic volume increases as a result of the development [would] have negligible impacts on [traffic near the Overlay District]." Mendon residents argued against this study, suggesting that it failed to account for traffic already caused by nearby developments and finding error in the fact that it based its estimates on a hypothetical 6,800-square-foot structure, rather than the smaller, 2,000-foot structure actually proposed.
On May 3, 2010, the Mendon Board of Selectmen approved Showtime's second application in a ten-page decision letter, listing a subset of the applicable bylaws and regulations which would govern Showtime's license.
Displeased with the limitations on its adult-entertainment license, Showtime filed suit, claiming that the zoning bylaws restricting its operating hours and the size and height of its building were unconstitutional restrictions of expressive activity protected by the First Amendment. See U.S. Const. amend. I. It also challenged the ban on the sale and consumption of alcohol on the premises, alleging that this restriction was in violation of Article 16 of the Massachusetts Declaration of Rights. Mass. Const. art. XVI.
Where a district court has granted a motion for summary judgment, our review proceeds de novo. Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 61 (1st Cir.2000). In undertaking this review, we adopt the view of the record that is most favorable to the non-moving party. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993) (citations omitted). We give no heed to speculative, unsupported, or unreasonable conclusions, but favor Showtime's factual presentation insofar as it finds support in the record. Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st Cir.2013). We let a grant of summary judgment lie only where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is genuine where there exists "evidence [] such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
That the parties here filed cross-motions for summary judgment does nothing to alter or amend this standard of review, but demands only that we "determine whether either of the parties deserves judgment as a matter of law on [the] facts that are not disputed." Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996). In so doing, "the court must consider each motion separately, drawing inferences against each movant in turn."
The parties first spar over the nature of Showtime's constitutional claim, disputing whether it is a facial or an as-applied challenge. Mendon argues — and the district court agreed — that Showtime is limited to a facial challenge, given that it has never been sanctioned for violating any town bylaw. Showtime disagrees, arguing that it is clearly subject to the bylaws, allowing us to assess the application of these bylaws as-applied. Showtime points out that its initial license application was rejected based on size and height concerns, and that its renewed license application was only accepted based on its agreement to strictly adhere to the bylaws as amended. In the alternative, it notes that, given the facts of this case, there is little practical distinction between a facial and an as-applied challenge. Circumscribed as the universe of applicability for these bylaws is — they reach only the four plots of land within the Adult-Entertainment Overlay District — Showtime suggests that a facial challenge, in this context, must proceed in a near-identical fashion to an as-applied challenge.
In fact, this case highlights the sometimes nebulous nature of the distinction between facial and as-applied challenges, for Showtime's challenge does not fit neatly within our traditional concept of either type of claim. Still, we are not left without guidance in navigating this issue, as the Supreme Court has faced a similar duality in the First Amendment context. See John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). In Reed, the Court noted that the challenge on appeal "ha[d] characteristics of both" facial and as-applied challenges. Id. It concluded, however, that "[t]he label is not what matters. The important point is that [the] claim and the relief that would follow... reach beyond the particular circumstances of these plaintiffs. [It] must therefore satisfy our standards for a facial challenge to the extent of that reach." Id. (citing United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010)).
We understand the relief sought here to be the invalidation of the zoning bylaws, not merely a change in their application to Showtime. Drawing guidance from Reed, it is clear that this is a request that "reach[es] beyond" the precise circumstances of Showtime's license application. See id. As such, Showtime must prove that the bylaws do not have "a plainly legitimate sweep." Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008); see also McCullen v. Coakley, 571 F.3d 167, 174 (1st Cir.2009) (describing the requirement that a statute "has a plainly legitimate sweep" as a "refinement of [the Supreme Court's] earlier statement that a party mounting a facial challenge `must establish that no set of circumstances exists under which the Act would be valid.'" (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987))).
We turn next to the task of identifying the appropriate level of scrutiny to be applied to Mendon's regulations. In undertaking this analysis, we travel a well-worn path. It is axiomatic that "the government cannot inhibit, suppress, or impose differential content-based burdens on speech." McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir.2001) (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). This broad protection further extends, without question, to "expressive conduct," R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citing Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)), including those expressive activities associated with adult entertainment. To sustain such a content-based restriction, the government must prove both a compelling state interest and that the means used to achieve that interest are the least restrictive available. See, e.g., United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). In practice, this test is exceedingly difficult, and the vast majority of such regulations are held to unconstitutionally inhibit speech. See McGuire, 260 F.3d at 43.
In contrast, content-neutral restrictions on speech are awarded more deference, for they are understood to "burden speech only incidentally." Id. Because courts have recognized that such restrictions "portend less jeopardy for freedom of speech," they are assessed under a still-stringent, but less-exacting form of review. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 737 (1st Cir.1995). This intermediate level of scrutiny allows regulations justified by neutral purposes, rather than by the content of speech, to survive so long as they support a significant government interest, do not burden substantially more speech than necessary, and leave available alternative channels of communication. Clark v. Cmty. for Creative
In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court crystallized its approach to zoning regulations affecting adult-entertainment businesses. There, the Court made clear that "with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses" are rightly considered content neutral. Id. at 49, 106 S.Ct. 925 (citing Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70-71 & n. 34, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)). The Court explained: "[w]e have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings...." Id. (quoting Young, 427 U.S. at 82 n. 6, 96 S.Ct. 2440 (Powell, J., concurring)).
Where regulatory distinctions are drawn between sexually-oriented businesses and their less prurient counterparts, therefore, the regulation is content-neutral only if the differential treatment does not stem from a disapproval of the former business-type's expression. Instead, regulations focused on secondary effects of adult entertainment, where such effects are uniquely precipitated by that type of entertainment, are considered content neutral despite their uneven application. See Nat'l Amusements, 43 F.3d at 738.
We recognize that such analytically neat compartmentalization often becomes muddled in practice. See, e.g., City of Renton, 475 U.S. at 47, 106 S.Ct. 925 ("At first glance, the [] ordinance ... does not appear to fit neatly into either the `content-based' or the `content-neutral' category."); Nat'l Amusements, 43 F.3d at 737 ("The concept of what constitutes a content-based as opposed to a content-neutral regulation has proven protean in practice."). In this case, however, the distinction is ultimately immaterial, as the bylaws cannot survive even the less onerous test of intermediate scrutiny. See Clark, 468 U.S. at 293, 104 S.Ct. 3065 (explaining that intermediate scrutiny requires the showing of a substantial governmental interest, achieved through means that do not burden more speech than necessary and that leave open adequate alternative channels of communication). Therefore, recognizing that the zoning bylaws' express terms set forth content-neutral purposes, we proceed in the application of intermediate scrutiny while withholding judgment as to the bylaws' true content neutrality.
Mere reference to a neutral intent does not suffice to satisfy Mendon's burden to prove that its bylaws in fact further a substantial governmental interest unrelated to the content of the speech. See, e.g., United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (requiring a regulation to "further[] an important or substantial governmental interest ... unrelated to the suppression of free expression); Nat'l Amusements, 43 F.3d at 738 ("[E]ven when a municipality passes an ordinance aimed solely at the secondary effects of protected speech ... the ordinance may nevertheless be deemed content-based if the municipality differentiates between speakers for reasons unrelated to the legitimate interests that prompted the regulation." (emphasis omitted) (citing City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, at 429-31, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993))).
We pause to make clear, as the district court recognized, that "the First Amendment imposes not an `underinclusiveness' limitation but a `content discrimination' limitation upon a State's prohibition of proscribable speech." R.A.V., 505 U.S. at 387, 112 S.Ct. 2538. Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose. Florida Star v. B.J.F., 491 U.S. 524, 540, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) ("[F]acial underinclusiveness ... raises serious doubts about whether Florida is serving the interests specified...."); FCC v. League of Women Voters of Cal., 468 U.S. 364, 396, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) ("[P]atent ... underinclusiveness... `undermines the likelihood of a genuine [governmental] interest.'") (quoting First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 793, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)); Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) ("The apparent ... underinclusiveness of the statute's restriction would seem largely to undermine appellant's claim that the prohibition ... can be justified by reference to the State's interest...."); Erznoznik, 422 U.S. at 215, 95 S.Ct. 2268; Auburn Police Union v. Carpenter, 8 F.3d 886, 897 n. 15 (1st Cir.1993) ("A statute's underinclusiveness ... indicates that the government is not, in fact, serving the proffered compelling interest.").
The amendments to the zoning bylaws expressly set forth two purposes: (1) maintaining the rural aesthetics of Mendon as a small town; and (2) avoiding traffic congestion, particularly on days when school is in session. After careful consideration, we find both stated purposes to be patently underinclusive, and thus, insufficient to support Mendon's claim that it has regulated adult-entertainment businesses only out of a substantial interest in curbing the secondary effects of such businesses.
The October 7, 2008, amendments to Mendon's bylaws stated that size and height restrictions were intended to protect Mendon's rural, small-town aesthetic. Showtime suggests that this claim is clearly pretextual, given that the bylaws apply only within the Adult-Entertainment Overlay District, a heavily commercialized zone. In fact, it is uncontested that the character of the Adult-Entertainment Overlay
It is thus unclear, and Mendon does not clarify, what particular negative effect the size and height of an adult-entertainment business would have on rural aesthetics that is not shared by all other large, commercial structures (including those already operating in the Adult-Entertainment Overlay District). This shortcoming was made particularly clear during the following exchange at oral argument:
This exchange concisely illustrates the flaw in Mendon's reliance on aesthetics: a large adult-entertainment business has no secondary effect distinct from a large building of another sort, at least not without reference to what goes on "in the building." Cf. Discovery Network, 507 U.S. at 425, 113 S.Ct. 1505 ("The city has asserted an interest in esthetics, but respondent publisher's newsracks are no greater an eyesore than the newsracks permitted to remain on [city] sidewalks."). If size does matter, but matters only in the context of what type of business a building houses, this belies any notion that Mendon's size and height requirements are "justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065). Mendon thus appears to have differentiated between speakers for reasons "unrelated to the legitimate interests that prompted the regulation," a fact that flies in the face of Mendon's claim that the bylaws in fact further a substantial, content-neutral, interest in rural aesthetics. Nat'l Amusements, 43 F.3d at 738 (emphasis omitted).
Given the unchallenged regulations on building appearance and advertisement, we see no cognizable difference in aesthetic impact between a large building hosting adult-entertainment activities and a large building hosting a bridge club or a bible study within the Adult-Entertainment Overlay District.
Before moving on, we note that Mendon attempts on appeal to subtly change the contours of its stated interest, arguing that "[b]light, decreased property values, and deteriorated neighborhoods" (interests that are more closely related to monetary value and quality of life than to a "rural aesthetic") may spread beyond the four-plot Adult-Entertainment Overlay District. Therefore, it suggests that our review must also extend beyond the Adult-Entertainment Overlay District — a clearly commercialized area bordering a state highway, which boasts of little by way of rural aesthetic — and take into consideration Mendon's rural nature as a whole. We refuse to do so, for the simple reason that this suggestion runs contrary to the multitude of studies Mendon itself entered into the record. These studies exhibit a common theme regarding the effect of adult-entertainment businesses on property values and quality of life in residential neighborhoods: these effects have a limited radius. The studies caution that any negative effects caused by adult-entertainment businesses on the surrounding area extend, on average, a few city blocks in distance.
Avoiding traffic congestion along Route 16 is another stated justification for the size, height, and operating hours restrictions of the amended bylaws. Mendon asserts that it has a substantial interest in combating the neutral, secondary effect of increased traffic caused by patrons traveling to and from the Adult-Entertainment Overlay District. Specifically, restricting the opening hours for adult-entertainment businesses to 4:30 p.m. is justified as a means of allowing all local school buses to complete their routes absent increased traffic. Multiple studies, Mendon argues, suggest that traffic congestion is created by adult-entertainment businesses, such that a town may choose to regulate the operating hours and size of those businesses to curb the effect. Showtime counters this argument, pointing to the fact
Careful scrutiny reveals that the bylaws are equally underinclusive as related to traffic concerns as they are to Mendon's rural aesthetic. We are thus convinced that Mendon, on this record, has not set forth evidence that the bylaws actually further its substantial interest in curbing traffic congestion in a manner sufficient to survive intermediate scrutiny. For one, Mendon fails to clarify how the traffic effects of adult-entertainment businesses along Route 16 are in any way distinct from the traffic effects that would be caused by any other large, commercial business that might choose to locate along the same stretch of highway. For example, Mendon makes no suggestion that these bylaws would apply to a large restaurant, clothing retailer, or car dealership (all businesses at which we would expect daytime traffic) operating within the Adult-Entertainment Overlay District prior to 4:30 p.m. The record also gives no indication as to how the daytime traffic effects of an adult-entertainment business operating on Showtime's lot would be in any way distinct from, or less severe than, the effects caused by the business it would replace: a 2,600-square-foot, 1.9-story tall landscaping business.
Mendon's reliance on the studies of other municipalities does nothing to render us less dubious of its proffered interest. Having conducted an independent review of these studies, we find that the vast majority make no mention of traffic effects at all. Even those that do discuss traffic do so in a tellingly dissimilar manner relative to Mendon's suggested concern. The sum of these references are provided below:
These references are largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis. In several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses. Also of note is that the studies wholly fail to suggest that patronage at an adult-entertainment business would have any distinct effect when located in already commercialized zones, such as the Adult-Entertainment Overlay District.
Even observing these studies in the light most favorable to Mendon, as we must when considering Showtime's cross-motion for summary judgment, we fail to see how they sufficiently establish that an adult-entertainment business located along a highway, in a commercially zoned area, and with off-street parking accommodations, would have a secondary effect on traffic patterns different from, or worse than, other commercial business of like size and capacity that might open in the same location. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 73, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems... more significant than those associated with various permitted uses; nor does it appear that the Borough's zoning authority has arrived at a defensible conclusion that unusual problems are presented by live entertainment.").
Similarly, although members of Speak Out Mendon referenced heavy pre-existing traffic on Route 16, "even a traffic regulation cannot discriminate on the basis of content unless there are clear reasons for the distinction[]." Erznoznik, 422 U.S. at 215, 95 S.Ct. 2268. This anecdotal reporting does perhaps even less than the studies entered into evidence to substantiate Mendon's claim that increased traffic from an adult-entertainment business is more problematic — or more likely — than increased traffic from any other new commercial enterprise choosing to operating within the Adult-Entertainment Overlay District. Nonetheless, it is uncontested that if Showtime chose instead to operate a ballet studio, movie theater, or grocery store, those businesses would not be subject to the bylaws. Schad, 452 U.S. at 73-74, 101 S.Ct. 2176 ("We do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant.").
We note before closing that Mendon does make a limited attempt to argue that adult-entertainment businesses attract a higher percentage of out-of-town patrons, less concerned with Mendon's quality of life, than other types of commercial activity, resulting in traffic effects unique from that of other businesses.
We therefore find Mendon's reliance on traffic concerns to be tellingly underinclusive, see, e.g., Carey, 447 U.S. at 455-56, 100 S.Ct. 2286; Florida Star, 491 U.S. at 540, 109 S.Ct. 2603, revealing that Mendon's allegedly substantial interest is not actually furthered by its bylaws, a fact fatal to its claim under intermediate scrutiny. See, e.g., O'Brien, 391 U.S. at 377, 88 S.Ct. 1673.
We find the zoning bylaws to be tellingly underinclusive, highlighting that Mendon has failed to prove that it has a substantial interest in regulating the secondary effects of adult-entertainment businesses that is actually furthered by its bylaws. The narrow application of these bylaws — passed in the aftermath of Showtime's initial application for an adult-entertainment license — to only the four-plot Adult-Entertainment Overlay District belies Mendon's proffered interest in traffic safety and rural aesthetics. We believe that the record makes clear that these interests, although theoretically substantial in their own right, are not what prompted Mendon's amendments to the bylaws. See, e.g., Auburn Police Union, 8 F.3d at 897 & n. 15 (collecting cases finding that patent underinclusiveness may prove the lack of a substantial governmental interest). Accordingly, we find that it is Showtime, not Mendon, that ought to have been awarded summary judgment on these claims.
Showtime also challenges an amendment to Mendon's general bylaws that forbids the sale or consumption of alcoholic beverages at any adult-entertainment business within the Adult-Entertainment Overlay District. Showtime does not bring this challenge under the First Amendment, but rather asserts that Article 16 of the Massachusetts Declaration of Rights provides more expansive protection for adult entertainment than does its federal counterpart.
As a federal court sitting in diversity over an issue of state law, we are generally tasked with making an "informed prophecy" of how the highest state court would rule on this question. See Ambrose v. New Engl. Ass'n of Sch. & Colls., Inc., 252 F.3d 488, 497-98 (1st Cir. 2001); see also In re Bos. Reg'l Med. Ctr., Inc., 410 F.3d 100, 108 (1st Cir.2005). However, where our court determines that the path of state law is sufficiently undeveloped, or the correct answer to the question before us sufficiently unclear, so as to make such prophetic action unwise, we may instead choose to certify such questions to the highest court of the state. In re Hundley, 603 F.3d 95, 98 (1st Cir.2010); Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4, 7 (1st Cir.1988); see also Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974) (holding that the decision to certify a case a question is within the "sound discretion" of federal courts). For issues of Massachusetts law, we may appropriately certify to the SJC "questions of law ... which may be determinative of the cause then pending... and as to which it appears ... there is no controlling precedent in the decision of [the SJC]." Mass. S.J.C. R. 1.03; see also In re Engage, Inc., 544 F.3d 50, 52 (1st Cir.2008). This case meets both requirements for certification.
We need not spill much ink on the first requirement: Showtime challenges the restriction on providing adult-entertainment in conjunction with the service of alcohol solely under Article 16 of the Massachusetts Declaration of Rights. Accordingly, there is no question that proper interpretation of state constitutional law is "determinative" of this action.
The second requirement for certification is that there be "no controlling precedent" from the SJC. See Mass. S.J.C. R. 1.03. Our case law has interpreted "no controlling precedent" to mean that certification is inappropriate where "the course the state court would take is reasonably clear." In re Engage, 544 F.3d at 53 (alterations and citation omitted). Where a "case presents close and difficult legal issues," however, we may often be unable to "say that the course that the SJC would take is reasonably clear." Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st Cir.2013); see also In re Engage, 544 F.3d at 53. As explained below, this is one such case, and we therefore believe that certification to the SJC is appropriate.
As Showtime recognizes, Article 16 protects a wider swath of expressive conduct in the form of adult entertainment than does the First Amendment. See, e.g.,
Similarly, the SJC has made clear that Article 16 offers robust protection to expressive activity occurring in conjunction with the sale or purchase of alcohol. While the Twenty-First Amendment's grant of regulatory power over alcohol sales to the states has historically been read to limit the First Amendment's protection of expressive conduct in establishments licensed to serve alcohol,
In accordance with these strong protections, the SJC has consistently held that adult-entertainment occurring in bars is considered constitutionally protected expressive conduct that may not be abridged "in the absence of a demonstrated countervailing State interest." Cabaret Enters., 468 N.E.2d at 614; see id. (holding unconstitutional a ban on nude dancing in bars given the absence of "evidence that [the adult-entertainment facilities have] been the source of crime such as drug distribution or disorderly conduct or assaults or sexual improprieties"); Sees, 373 N.E.2d at 1156 (concluding that a restriction on nude dancing in bars was unconstitutional where the dancer "did not mingle with other employees or with patrons, and there is no contention that the performance was obscene"). But see Mendoza, 827 N.E.2d at 188-89 (applying intermediate scrutiny to an ordinance banning all public nudity where the city "at least advanced and attempted to document a governmental
Naturally, the parties draw from this precedent sharply contrasting inferences about the constitutionality of Mendon's amended bylaws. Showtime styles the amendment as a "total ban" on the presentation of adult entertainment in conjunction with the sale or consumption of alcohol, which it claims is a clear violation of the protection offered by Article 16. Mendon, in contrast, argues that the restriction is wholly permissible; unlike the towns in Sees and Cabaret Enters., it has set forth a governmental interest and has crafted the amendment to narrowly target only those businesses most likely to cause the identified secondary effects.
Neither argument wholly convinces. For its part, Showtime fails to acknowledge that Cabaret Enters. and Sees were decided in the absence of any governmental justification for their proposed restrictions on expressive activity. See Mendoza, 827 N.E.2d at 188 ("The records in both [Cabaret Enters. and Sees] `fail[ed] to demonstrate [any] justification for the imposition of a restraint on the exercise of a right guaranteed by art. 16." (alterations in original) (quoting Cabaret Enters., 468 N.E.2d at 614)). Here, in contrast, Mendon has at least set forth an interest in deterring an increase in criminal activity which it believes will arise if adult entertainment is presented in conjunction with the service of alcohol.
Under intermediate scrutiny,
In consequence, the SJC's precedents may reasonably be conceived of as staking
Although "the legal standards to [be applied in this case] are relatively apparent," "the application of those standards is difficult, and the outcome far from certain." See Easthampton Sav. Bank, 736 F.3d at 51. Moreover, the claim rests solely on issues of state constitutional law, implicates a fundamental right of Massachusetts citizens, and may have far-reaching impact on municipalities throughout Massachusetts in their construction of local ordinances. See In re Engage, 544 F.3d at 57 (explaining that the mere difficulty of a legal issue is generally insufficient to warrant certification, but deeming certification appropriate where additional factors weigh in favor of having the state court decide such complex questions of state law) (citing Bos. Gas Co. v. Century Indem. Co., 529 F.3d 8, 15 (2008)). For these reasons, we believe certification is warranted.
We reverse the grant of summary judgment in favor of Mendon as it relates to the bylaws regarding the size, height, and operating hours of adult-entertainment businesses. We remand this claim to the district court for entry of summary judgment in favor of Showtime.
We certify to the SJC the following questions related to Mendon's restriction on adult entertainment occurring within establishments licensed to serve alcohol:
We would further welcome the advice of the SJC on any other relevant aspect of Massachusetts law that it believes would aid in resolution of this dispute.
The Clerk of this Court is directed to forward to the Massachusetts SJC, under the official seal of this court, a copy of the certified questions and this opinion, along with a copy of the briefs and appendices filed by the parties. We retain jurisdiction over this issue pending the SJC's response.
