Showtime Entertainment, LLC v. Town of Mendon

2014 | Cited 0 times | First Circuit | October 8, 2014

United States Court of Appeals For the First Circuit

No. 12-2121


Plaintiff, Appellant,



Defendants, Appellees.


[Hon. F. Dennis Saylor, IV, U.S. District Judge]


Torruella, Howard, and Kayatta, Circuit Judges.

Thomas Lesser, with whom Michael Aleo and Lesser, Newman & Nasser, LLP were on brief, for appellant. Brandon H. Moss, with whom Robert S. Mangiaratti and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees.

October 8, 2014

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


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, concluding that the restrictions in question were


sufficiently tailored towards controlling the secondary effects of

speech. After careful consideration, we disagree that the bylaws

regulating the size, height, and hours of operation support a

substantial, content-neutral governmental interest. We find that

these bylaws -- which have no effect on other businesses of like

size, height, or operating hours -- unconstitutionally infringe on

Showtime's right to engage in a protected expressive activity. We

also find that the application of Article 16 of the Massachusetts

constitution to the Mendon bylaw banning the sale and consumption

of alcohol is a close issue of constitutional law and difficult for

us to predict. Therefore, we certify questions related to this

claim to the Massachusetts Supreme Judicial Court.

I. Background

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).

A. Mendon creates the Adult-Entertainment Overlay District

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:

The purpose of this Adult Entertainment Overlay District section of the Town of Mendon Zoning Bylaws is to address and mitigate the secondary effects of adult entertainment establishments. . . . These effects include increased crime, and adverse impacts on public health, the business climate, the property values of residential and commercial property and the quality of life. The provisions of this section have neither the purpose nor intent of imposing a limitation on the content of any communicative matter or materials, including sexually oriented matter or materials. Similarly, it is not the purpose or intent of this Section (Overlay District) to restrict or deny access to adult entertainment establishments or to sexually oriented matter or materials that is protected by the Constitutions of the United States and the Commonwealth of Massachusetts . . . .

Town of Mendon Zoning By-Laws, § 5.01(b).1

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

1 The constitutionality of establishing the Adult-Entertainment Overlay District is not disputed by Showtime. Similar zoning restrictions have previously been upheld under intermediate scrutiny. See, e.g., D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50 , 53, 61 (1st Cir. 1999).


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 regarding

the eligibility standards for adult-entertainment licenses. These

regulations, spanning eighteen pages, require that all adult-

entertainment businesses ensure adequate lighting, signage, and

noise reduction; hire security personnel; and prohibit touching or

mingling between patrons and employees clothed in "less than opaque

attire." See Mendon Board of Selectmen, Town of Mendon Regulations

Governing Adult-Entertainment Establishments Pursuant to M.G.L.

Ch. 140 Sec. 183A (2008) (the "Adult-Entertainment Regulations").

None of those regulations are at issue in this case, and it is

uncontested that Showtime is responsible for ensuring full

compliance with these mandates in its operation of an adult-

entertainment business.

B. Showtime applies for a license; Mendon responds

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


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


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 ban the consumption of

alcohol by patrons within any adult-entertainment business. See

Town of Mendon General By-Laws, ch. XXV. No other business in

Mendon is subject to such a restriction on the licensing and

consumption of alcohol, which applies only to "[adult-

entertainment] establishments . . . located within the layout lines

of the Adult Entertainment Overlay District."2 The stated

2 Adult-entertainment business means any "adult bookstore," "adult motion picture theater," "adult paraphernalia store," "adult video store," or an "establishment which displays live nudity for its


justification for this amendment was that "the presence of alcohol

is documented to exacerbate secondary crime effects at sexually

oriented businesses." Id.

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."3 Id.

patrons" as defined by Mass. Gen. Laws ch. 40A, § 9A. The definition for adult businesses in Mass. Gen. Laws ch. 40A, § 9A is businesses that show films or have as a "significant portion of [their] stock" items that are "characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined." 3 Another provision of the zoning bylaws, requiring that an Adult- Entertainment business operate no closer than 750 feet from any establishment licensed to sell liquor, was not approved and never took effect.


C. Showtime reapplies for an adult-entertainment license

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.4

4 A sampling of these regulations require that Showtime: place no parking signs along Route 16; soundproof its facility; ensure that no materials or signage of a sexual nature be visible from outside


D. The district court finds for Mendon

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.5 The parties filed

cross-motions for summary judgment and, on August 9, 2012, the

district court entered judgment in favor of Mendon on all claims

related to the constitutionality of the bylaws now on appeal.6 The

or appear in facility windows; monitor its parking areas nightly; and hire an off-duty police officer to patrol the premises on Thursday, Friday, and Saturday nights. See Decision re: Showtime Entertainment, LLC, Town of Mendon Board of Selectmen (May 3, 2010). 5 Showtime also brought a claim under the Massachusetts Civil Rights Act ("MCRA"), which prohibits the interference with federally or state-protected rights by "threats, intimidation, or coercion." Mass. Gen. Laws ch. 12, § 11I-H. The district court dismissed this claim on the grounds that municipalities are immune from suit under the MCRA. On appeal, Showtime alleges that this immunity applies only to claims for damages and asserts that it can seek injunctive relief against officials in their official capacity under the MCRA for "economic coercion." Because we otherwise find for Showtime, invalidating the bylaws in question, we need not consider this claim on appeal. 6 In the district court, Showtime also challenged a special permitting requirement applicable only to adult-entertainment businesses. The district court held that this requirement was an


district court reasoned that the restrictions served an important

government interest, were sufficiently narrowly tailored, and left

open alternative means of communication. Showtime now appeals,

largely reasserting the arguments it made before the district


II. Discussion

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 (1986).

unconstitutional prior restriction on speech, granted summary judgment in favor of Showtime on that claim, and awarded Showtime attorney's fees and costs in the amount of $24,754.56. Mendon does not appeal this decision.


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."

Reich v. John Alden Life Ins. Co., 126 F.3d 1 , 6 (1st Cir. 1997).

A. The constitutionality of the zoning bylaws

1. Preliminary wrangling: facial versus as-applied

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 (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 (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,

Mendon must prove that the bylaws have "a plainly legitimate


sweep." Wash. State Grange v. Wash. State Republican Party, 552

U.S. 449 (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 (1987))).7

As Showtime notes, however, the bylaws in question apply

only to adult-entertainment businesses within Mendon's city limits,

and consequently, only within the four-parcel Adult-Entertainment

Overlay District. The four plots lay adjacent to one another,

share a common access route, and are practically equidistant from

Mendon's residential and other commercial areas, indicating that

the effect on traffic, property values, or Mendon's cityscape

created by an adult-entertainment business located on any one of

these plots would be the same as that created by any of the other

7 A facial challenge may also succeed where even though "one or more valid application exists, the law's reach nevertheless is so elongated that it threatens to inhibit constitutionally protected speech." McGuire v. Reilly, 260 F.3d 36 , 47 (1st Cir. 2001). This standard refers to a party's ability to challenge a restriction on speech based on its overbreadth. See Stevens, 559 U.S. at 473 ("In the First Amendment context . . . this Court recognizes a 'second type of facial challenge,' whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." (quoting Wash. State Grange, 552 U.S. at 449 n.6 (2008)).


three. As such, the manner in which the bylaws apply to Showtime

is effectively identical to any of the bylaws' other potential

applications. Even limited to a facial challenge, therefore,

Showtime's claim is not one in which our court must indulge in

vivid imaginings, creating a large set of hypothetical applications

so as to test their possible validity. See Reed, 561 U.S. at 194

(explaining that a facial challenge must consider all possible

applications of the law to "the extent of [its] reach" (emphasis

added)). Here, that reach is exceedingly small. Therefore,

although we treat this claim as a facial challenge, the practical

effect of that distinction, as relevant to Showtime's claim, is

strikingly minimal.

2. The level of scrutiny: strict or intermediate

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 (1994)). This broad protection further

extends, without question, to "expressive conduct," R.A.V. v. City

of St. Paul, 505 U.S. 377 , 382 (1992) (citing Texas v. Johnson, 491

U.S. 397 , 406 (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 (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 Non-Violence, 468 U.S.

288 , 293 (1984).

In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

(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 (citing Young v. Am. Mini

Theatres, Inc., 427 U.S. 50 , 70-71 & n.34 (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 (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 ("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 (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.

3. The underinclusiveness of Mendon's stated interests

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

(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. at 429-31)).

Indeed, where such secondary effects flow in equal

measure from other businesses, which nonetheless are left untouched

by the regulation in question, it stands to reason that such

underinclusiveness raises questions as to whether the proffered

interest is truly forwarded by the regulation, or is in fact

substantial enough to warrant such regulation. See Erznoznik v.

City of Jacksonville, 422 U.S. 205 , 215 (1975) ("This court

frequently has upheld underinclusive classifications on the sound

theory that a legislature may deal with one part of a problem

without addressing all of it. This presumption of statutory

validity, however, has less force when a classification turns on

the subject matter of expression."); see also Nat'l Amusements, 43

F.3d at 738. In other words, we will not blindly accept

regulations that purport to address secondary effects where there

is "no justification . . . for distinguishing" between the effects

caused by adult-entertainment businesses and the effects caused by

any other business. Erznoznik, 422 U.S. at 215 (failing to find

any support for treating traffic concerns caused by adult movie

theaters differently than traffic concerns caused by any other

drive-in theater).

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.

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 (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 (1984) ("[P]atent . . .

underinclusiveness . . . 'undermines the likelihood of a genuine

[governmental] interest.'" (quoting First Nat'l Bank of Bos. v.

Belloti, 435 U.S. 765 , 793 (1978)); Carey v. Brown, 447 U.S. 455 ,

465 (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; 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.

i. Mendon's rural aesthetics

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 District is far from rural in nature. It

currently houses multiple large or multi-story commercial

structures, including a 6,900-square-foot self-storage facility, a

drive-in movie theater with an estimated capacity of 700 vehicles,

and a 10,152-square-foot nightclub. At the time Showtime applied

for an adult-entertainment license, the lot it owned was occupied

by a 2,595-square-foot, "1.9 story" landscaping supply store. Even

after the bylaws' passage, none of these businesses are subject to

size or height restrictions.

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:

THE COURT: There's a warehouse in that same block, isn't there? MENDON: On the Showtime lot there's a landscaping supply business. There is a self- storage facility in the zone as well. THE COURT: Yes, and how big is that? MENDON: It is larger than 2,000 square feet. I think it's six or seven [thousand square feet.] . . . . THE COURT: Does the warehouse impact what the town is trying to achieve? MENDON: The warehouse does not. . . . . THE COURT: It's not the size of the building, it's what may be perceived inside the building? MENDON: It's, it's a combination of factors, I think it is the size of the building, but it's also what's in the building . . . .

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 ("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 (1989) (quoting Clark, 468 U.S.


at 293). 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.8 Cf. Ward,

491 U.S. at 793 ("Any governmental attempt to serve purely esthetic

goals by imposing subjective standards . . . would raise serious

First Amendment concerns."). The effect that the size and height

of any one of these buildings would have on Mendon's cityscape,

"small town feel," and rural aesthetics is identical to the effect

of any other. Moreover, this is a fact which Mendon seems to

acknowledge, for it offers no argument -- beyond its problematic

concession at oral argument -- that adult-entertainment businesses

8 Showtime has not challenged the regulations and licensing restrictions forbidding it from placing signs or advertisements for its adult-entertainment business on the building's exterior. It has also not challenged the portion of section 5.01 requiring that "[a]ppearance of buildings for adult entertainment shall be consistent with the appearance of buildings in similar (but not specifically 'adult') use in Mendon, not employing unusual color or building design, which would attract attention to the premises." Town of Mendon Zoning By-Laws, § 5.01(f)(vi).


have a distinct effect on purely aesthetic concerns. We therefore

find that the underinclusive nature of this size and height

restriction defeats Mendon's assertion that the bylaws truly serve

a substantial interest in maintaining rural aesthetics. See, e.g.,

Auburn Police Union, 8 F.3d at 897 & n.15.

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.9 Therefore, even if Mendon could recraft its stated

interest in aesthetics to encompass these issues, it has presented

to our court a wealth of evidence suggesting that its size and

height requirements would not in fact further the avoidance of such

negative effects throughout the city. See Nat'l Amusements, 43

F.3d at 741 ("[A] governmental interest woven exclusively out of

the gossamer threads of speculation and surmise cannot be termed


ii. Mendon's traffic concerns

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 that

9 The distances referenced in the studies range from 200 to roughly 3,000 feet.


to receive an entertainment license under Massachusetts law, a

business must already prove that its operations would not cause "an

unreasonable increase" in traffic levels. Mass. Gen. Laws ch. 140,

§ 183A. It also presents the Greenman Study as proof that any

traffic effect would be, at most, negligible.

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:

• A 1979 study conducted by the Planning Department of Phoenix, Arizona states, as a hypothesis, that adult- entertainment business might cause "possible traffic congestion, unusual hours of operation, litter, noise, and criminal activity." The study then goes on to investigate the link between criminal activity and sexually oriented businesses. It never again references traffic concerns.

• A 1980 study by the Minnesota Crime Prevention Center concludes that bars without separate parking facilities, that instead rely on street parking to serve their patrons, are more often "nuisance bars" than those with separate parking facilities.

• A 1991 study commissioned by the City of Garden Grove, California included a survey completed by real-estate agents and city residents. Both groups indicated their belief that adult-entertainment businesses located "within 200 feet of a residential area" would increase traffic. A majority of respondents also felt traffic would be increased in a commercial zone.

• A 1993 report by the St. Croix County, Wisconsin Planning Department found that "[d]uring night time operation hours" there could be problems related to "traffic congestion."

• A 1996 report by the ERG/Environmental Research Group stated, generally, that in small towns with limited downtown commercial retail space, "the likelihood of a cruising circuit for cars in the vicinity of the sex oriented business increases." The report cited


concerns that "a sex oriented business will have the impact of drawing a regional . . . adult, male population . . . that has interests and activities that are at odds with those of families and the elderly."

• A 1997 law review article cited a "concern . . . with drivers who rush out of the parking lots of the business while children are nearby." It continued on to say that "at the core of this concern is the fear of the kind of people a nude dance club attracts."

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 (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. 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 ("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.10

Even if the residency of a driver had some cognizable effect on

traffic flow, we find it beyond improbable that Mendon could

substantiate any such distinction here, in light of the fact that

Route 16 is a state highway running East-West through much of

Massachusetts.11 By way of hypothetical, we can only presume that

a large, roadside restaurant offering an early-bird dinner special

to patrons as they travel through Mendon along Route 16 headed East

towards Boston would likely create the exact same amount of out-of-

town traffic at 4:00 p.m., half an hour before any adult-

entertainment business is allowed to operate, as Showtime's

10 Because we find this argument to be unavailing for other reasons, we do not address the possibility -- albeit never raised by Showtime -- that a municipality claiming a substantial interest in curbing the frequency at which non-residents visit its city limits could run afoul of a right to intrastate travel. Commonwealth v. Weston W., 455 Mass. 24 , 32-33, 913 N.E.2d 832 , 840 (2009) ("[T]he Massachusetts Declaration of Rights guarantees a fundamental right to move freely within the Commonwealth."); see also King v. New Rochelle Mun. Hosp. Auth., 442 F.2d 646 , 648 (2d Cir. 1971) (describing as "meaningless" the right to interstate travel unless a correlative right to intrastate travel exists). But see Mem. Hosp. v. Maricopa Cnty., 415 U.S. 250 , 255-56 (1974) (leaving open the question of whether the U.S. Constitution recognizes a fundamental right to intrastate travel). 11 A number of other businesses, including the nearby drive-in theater at 35 Milford Street, seem to cater specifically to out-of- town patrons. See (providing directions to the theater from neighboring cities and states).


preferred building, yet would not find its size or operating hours

curtailed in any way.

We therefore find Mendon's reliance on traffic concerns

to be tellingly underinclusive, see, e.g., Carey, 447 U.S. at 455-

56; Florida Star, 491 U.S. at 540, 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.

4. The zoning bylaws support no substantial interest

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.

B. The restriction on sale and consumption of alcohol

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.12 Citing cases in which the Massachusetts Supreme

Judicial Court ("SJC") has held bans on non-obscene nude dancing in

bars unconstitutional, Showtime asks us to find that Mendon's

"total ban" on such activity is clearly impermissible under Article

16. In the alternative, it requests that we certify this question

of law to the SJC. Mendon argues to the contrary, asserting that

any distinction between the scope of Article 16 and the First

Amendment need not concern us; under either the state or federal

12 The Massachusetts Supreme Judicial Court has made clear that there is no practical distinction between a regulation prohibiting the service of alcohol by businesses that provide adult entertainment and a regulation prohibiting adult entertainment in establishments that serve alcohol. See Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm'n, 393 Mass. 13 , 17-18, 468 N.E.2d 612 , 615 (1984) (rejecting the argument that an ordinance banning alcohol sales in the presence of nude dancing was only a licensing restriction, not a regulation of expressive activity).


constitution the ban on adult-entertainment occurring in

conjunction with alcohol service is clearly constitutional.

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

(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.

1. Article 16's protection of adult entertainment

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., Mendoza v. Licensing Bd. of Fall

River, 444 Mass. 188 , 201, 827 N.E.2d 180 , 191 (2005) ("[T]he

Federal rule does not adequately protect the rights of the citizens


of Massachusetts under art. 16."). Although nude dancing, as a

form of expressive activity, falls only just within the ambit of

First Amendment protections, Article 16 draws no distinction

between such adult-entertainment and its less prurient expressive

counterparts. Cabaret Enters., Inc. v. Alcoholic Beverages Control

Comm'n, 393 Mass. 13 , 17, 468 N.E.2d 612 , 614 (1984) (refusing to

"distinguish between barroom-type nude dancing and performances of

greater artistic or socially redeeming significance"); see also

Mendoza, 827 N.E.2d at 196 ("Although the Supreme Court has said

that nude dancing is expressive conduct within the outer perimeters

of the First Amendment . . . this court has rejected such

qualification under art. 16." (internal quotation marks and

citation omitted)).

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,13 "no provision of [the Massachusetts Declaration of

13 The Supreme Court has since limited the Twenty-First Amendment's restriction on First Amendment protections. See California v. La Rue, 409 U.S. 109 , 118-19 (1972) (recognizing that the Twenty-First Amendment granted states the power to regulate nude dancing where liquor is sold), overruled in part by 44 Liquor Mart, Inc. v. Rhode Island, 517 U.S. 484 , 516 (1996) ("We now disavow [LaRue's] reasoning insofar as it relied upon the Twenty-First Amendment.").


Rights] gives a preferred position to regulation of alcoholic

beverages." Commonwealth v. Sees, 374 Mass. 532 , 536-37, 373

N.E.2d 1151 , 1155 (1978). Therefore, unlike its federal

counterpart, Article 16 "makes no distinction between 'free speech

in a bar and free speech on a stage.'" Mendoza, 827 N.E.2d at 190

n.15 (citing Sees, 373 N.E.2d at 1155); see also Aristocratic Rest.

of Mass, Inc. v. Alcoholic Beverage Control Comm'n (No. 1), 374

Mass. 547 , 554, 374 N.E.2d 1181 , 1186 (1978) ("Because our State

Constitution has no special provision like the Twenty-first

Amendment concerning the regulation of alcoholic beverages, the

right of free speech guaranteed by art. 16 has no parallel limited

status in premises where alcoholic beverages are served.").

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

The SJC has not had an opportunity to speak to whether a distinction between Article 16 and the First Amendment remains post-LaRue.


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 interest" in crime deterrence, although withholding

judgment as to the ordinance's true content neutrality).

2. Article 16's application to the general bylaws

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,14 however, Mendon must also

show that its interest in crime deterrence is substantial, and that

its restriction on expressive activity is "'narrowly tailored' to

advance . . . [that] interest 'without at the same time banning or

significantly restricting a substantial quantity of speech that

does not create the . . . evils [the city seeks to eliminate]."

Id. (alterations in original) (quoting City of Bos. v. Back Bay

Cultural Ass'n, 418 Mass. 175 , 183, 635 N.E.2d at 1179, 1180

(1994)); see also Commonwealth v. Ora, 451 Mass. 125 , 129, 883

N.E.2d 1217 , 1221 (2008) (stating that under intermediate scrutiny

a restriction on speech must be "no greater than is essential to

14 Although Showtime argued that the zoning bylaws were appropriately subject to strict scrutiny, it did not similarly suggest that strict scrutiny should apply to the alcohol ban. Cf. Mendoza, 827 N.E.2d at 188 (considering Mendoza's argument that strict scrutiny should apply despite the proffer of a facially content-neutral interest in combating crime). Therefore, although acknowledging that the alcohol ban was passed concurrently with the zoning bylaw amendments -- the underinclusiveness of which betrays their asserted content-neutral purpose -- we do not consider the application of strict-scrutiny to this claim.


the furtherance of the government interest"). In Mendoza the

answer to the second of these inquiries was simple: the ordinance

banned any public nudity within city limits, making it "tantamount

to censorship." 827 N.E.2d at 189. Given that the ordinance in

Mendoza so clearly failed the test for narrow tailoring, the SJC

did not engage in significant analysis of what evidence is required

of a city to prove the validity and substantiality of its stated

interest. Neither does Mendoza provide significant guidance on how

the SJC would apply the test for narrow tailoring in a case, like

that now before us, presenting a much closer question than the

citywide ban on public nudity considered in Mendoza. Cf. id. ("No

matter what the formulation of the [narrow tailoring] test, . . .

a complete ban is not 'narrowly tailored' . . . .").

In consequence, the SJC's precedents may reasonably be

conceived of as staking out two poles of scrutiny, with most cases

falling somewhere in between. On one end, absent any

justification, protected adult entertainment in the presence of

alcohol service may not be constitutionally abridged. On the other

end, no matter what justification is provided, a total ban on

protected activity will not survive narrow tailoring. Between

these poles, however, there are significant open questions

regarding Article 16's proper application. This case, which falls

somewhere near the middle of the rules set forth in guiding

precedent, thus presents a close issue of constitutional law, the


proper resolution of which is difficult to predict, and suitable

for certification to the SJC.

3. Certification to the SJC

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.15

15 On appeal, Showtime also challenges the amended bylaws as overbroad. See Stevens, 559 U.S. at 473 (finding that "a law may be invalidated as overbroad" if "a substantial number of its applications are unconstitutional . . . ."); Aristocratic Rest., 374 N.E.2d 1181 , at 1187 (describing the overbreadth analysis under Article 16 as "similar" to the overbreadth analysis under the First Amendment). Having closely reviewed the record, however, we find no indication that Showtime sought to challenge the restriction on these grounds before the district court, and we cannot reasonably read its arguments therein as setting forth a prima facie argument for overbreadth. Aristocratic Rest., 374 N.E.2d at 1187 ("[A] party must demonstrate both that the challenged governmental regulation is not susceptible of a construction which limits its


III. Conclusion

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:

1. Do the pre-enactment studies and other evidence considered by Mendon demonstrate a "countervailing State interest," Cabaret Enters., 468 N.E.2d at 614, sufficient to justify Mendon's ban on alcohol service at adult- entertainment businesses?

2. If the ban is so justified, is it adequately tailored?

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.

application to unprotected activity and that the deterrent effect of any government regulation is both real and substantial." (citations and internal quotation marks omitted)); see also N.Y. State Club Ass'n v. City of N.Y., 487 U.S. 1 , 14 (1988) ("[A]ppellant must demonstrate from the text of [the bylaw] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally."). Therefore, the claim is properly deemed waived on appeal. See Demelo v. U.S. Bank Nat'l Ass'n, 727 F.3d 117 , 123 (1st Cir. 2013). Consequently, any issue of overbreadth is not determinative in this case, making certification of this issue unnecessary. See S.J.C. R. 1.03.


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.

So ordered.


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