## Facts

- A business operating an adult cabaret in La Habra, California, featured nude stage dancing and private offstage dances in minimal clothing; the club did not serve alcohol.
- The City adopted Municipal Ordinance 1626 regulating adult businesses based on findings that such businesses are associated with crime, economic harm, and sexually transmitted diseases.
- The City’s findings relied on studies and police materials from other jurisdictions, judicial opinions, and public health data from nearby counties.
- The ordinance included (1) a no-touch rule barring physical contact between dancers and patrons and (2) a two-foot rule requiring adult cabaret dancers to perform at least two feet from patrons.
- The plaintiffs challenged only the two-foot rule on constitutional grounds.
- After removal to federal court, the district court disposed of claims on the pleadings and on summary judgment for the City; the plaintiffs appealed.

## Issues

1. Whether the two-foot rule is a content-neutral regulation aimed at secondary effects of adult entertainment, subject to intermediate scrutiny as a time, place, and manner restriction.
2. Whether the City had sufficient evidence reasonably believed relevant to support its secondary-effects findings and justify the two-foot rule.
3. Whether the two-foot rule is substantially overbroad under the First Amendment.
4. Whether regulating adult businesses differently from other venues violates equal protection.

## Decision

- The Ninth Circuit affirmed judgment for the City and upheld the two-foot rule.
- The court treated the ordinance as content-neutral because it targeted secondary effects rather than suppressing erotic expression.
- The City’s reliance on nonlocal studies, police materials, judicial opinions, and regional public health data satisfied the requirement of evidence reasonably believed relevant to the identified problems.
- The two-foot rule was upheld as a permissible time, place, and manner restriction that left open adequate alternative avenues for the protected expressive conduct.
- The court rejected the overbreadth challenge as speculative and not substantial relative to the ordinance’s legitimate sweep.
- The equal protection challenge failed because the City had a rational basis for differentiating adult businesses based on documented secondary effects.

## Legal Principles

- Regulations of adult entertainment are content-neutral, for First Amendment purposes, when justified by secondary effects (such as crime and public health harms) rather than by disagreement with the message.
- Content-neutral time, place, and manner restrictions are reviewed under intermediate scrutiny and must be narrowly tailored to serve a substantial governmental interest while leaving open adequate alternative channels for expression.
- A municipality may rely on evidence from other jurisdictions and other relevant sources; it need not conduct new local studies if the evidence is reasonably believed relevant to the problem addressed.
- After the government makes a threshold showing of relevant evidence supporting secondary effects, challengers must produce evidence casting direct doubt on the rationale to defeat the regulation.
- A facial overbreadth claim requires substantial overbreadth relative to a law’s legitimate applications; remote or conjectural applications are insufficient.
- Differential treatment of adult businesses generally survives equal protection review if supported by a rational basis tied to secondary-effects concerns.

## Conclusion

The Ninth Circuit held that La Habra’s two-foot separation requirement for adult cabaret dancers was a content-neutral, intermediate-scrutiny regulation supported by reasonably relevant evidence of secondary effects, and it rejected facial overbreadth and equal protection challenges.


Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005)