01-2104 Blue Canary Corp. v. City of Milwaukee

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“The City has not prohibited the plaintiff from operating a burlesque theater, with or without nudity. It has merely prohibited the operation of such a theater in proximity to a residential neighborhood. Milwaukee is a large city and the plaintiff does not deny that there are abundant convenient locations in which the operation of such a theater would not violate the City’s zoning law. In these circumstances, as we said in our previous opinion, ‘the impairment of First Amendment values is slight to the point of being risible, since the expressive activity involved in the kind of striptease entertainment provided in a bar has at best a modest social value and is anyway not suppressed but merely shoved off to another part of town, where it remains easily accessible to anyone who wants to patronize that kind of establishment.’ 251 F.3d at 1124.

“The plaintiff argues that allowing the zoning commissioner to determine whether an unlisted use is ‘similar’ to a listed one injects an impermissible degree of discretion into the administration of the zoning law. And it is true that the case law expresses concern about arming public officials with discretion to deny expressive activities, lest that discretion be used to suppress unpopular speech… But some degree of discretion is an unavoidable feature of law enforcement. … Legislatures are not omniscient and cannot be expected to enumerate every possible land use that might present a zoning issue. The use of a term such as ‘similar’ to stop up potential loopholes is not forbidden by the First Amendment … at least where no feasible alternative is suggested. And there is no reasonable doubt that a burlesque theater that exhibits nude dancing is similar to an adult movie theater. Both are theaters, both present erotic entertainment, and if anything a live sex show is more erotic than a celluloid one.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Reynolds, J., Posner, J.