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Attorney General: Charles Joseph Bonaparte

“To have a popular government we must, first of all, and before all else, have good citizens.”
—Charles Joseph Bonaparte


Charles Joseph Bonaparte – Forty-Sixth Attorney General 1906-1909

Charles Joseph Bonaparte was born in Baltimore, Maryland, on June 9, 1851. He graduated from Harvard College in 1871 and from Harvard Law School in 1874. He was admitted to the Maryland bar. Bonaparte was appointed a member of the Board of Indian Commissioners in 1902. For a number of years he was a member of the Board of Overseers of Harvard College, and was one of the organizers and president of the National Municipal League. For several years he was chairman of the Council of the National Civil Service Reform League. Bonaparte was a presidential elector for Maryland on the Republican ticket in 1904, the only Republican elected. On July 1, 1905, he was appointed Secretary of the Navy. President Roosevelt appointed him Attorney General of the United States on December 17, 1906, which office he held until March 4, 1909. He died at his estate, Bella Vista, near Baltimore, on June 28, 1921.

Updated November 4, 2014


Bonaparte was born in Baltimore, Maryland on June 9, 1851, the son of Jerome (“Bo”) Napoleon Bonaparte, (1805–1870) and Susan May Williams (1812–1881), from whom the American line of the Bonaparte family descended, and a grandson of Jérôme Bonaparte, the youngest brother of French Emperor Napoleon I and King of Westphalia, 1807–1813. However, the American Bonapartes were not considered part of the dynasty and never used any titles.

In: wikipedia

Charles Joseph Bonaparte, who served as U.S. attorney general under president theodore roosevelt, was one of the organizers of the Civic Reform League and the National Municipal League, and he helped to found a Special Agents Force within the justice department that was the forerunner of the federal bureau of investigation (FBI).

A grandson of Jerome Bonaparte, who was Napoleon’s youngest brother, Charles Joseph Bonaparte was born in Baltimore, Maryland, on July 9, 1851. After graduating from Harvard College in 1871, he attended Harvard Law School, graduating in 1874. Bonaparte returned to Baltimore and established a private practice. At the time, public corruption of elected officials was widespread in the United States and the political situation in Maryland was considered to be the worst in the country. Bonaparte, of Italian-American descent, became interested in civic reform, commenting in an article published in Forum magazine that the politicians of that period if not technically criminals themselves, were the “allies and patrons of habitual lawbreakers.”

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Family Sues Apple, Claiming FaceTime Distracted Driver in Crash That Killed 5-Year-Old Daughter

A Texas couple is suing Apple, claiming that its FaceTime app distracted a driver who rammed into the couple’s car, killing their 5-year-old daughter.

Parents James and Bethany Modisette are suing Apple for damages on the basis that the electronics giant failed to install and implement a “safer, alternative design” for FaceTime that would have helped to prevent a driver from using the app while traveling at highway speed, court documents show.

The lawsuit filed Dec. 23 in California Superior Court in Santa Clara County also claims that Apple failed “to warn users that the product was likely to be dangerous when used or misused” or to instruct on its safe usage.

The fatal accident occurred Christmas Eve in 2014 near Dallas, when, according to the lawsuit, the Modisette family was driving in a Toyota Camry, with daughter Moriah, 5, in a booster seat in the left rear passenger seat and her sister, Isabella, next to her in the right rear seat.

The Modisettes had slowed or stopped their car due to police activity ahead of them on the highway that had caused traffic to back up, according to the suit.

Another driver, Garrett Wilhelm, traveling in his Toyota 4Runner in the same direction and behind the Modisette car, allegedly had his attention diverted by his use of the FaceTime app, the suit says.

“As a result of that distraction, his Toyota 4Runner, while traveling at full highway speed (65 mph), struck the Modisette family car from behind, causing it to be propelled forward, rotate, and come to a final rest at an angle facing the wrong direction in the right lane of traffic,” the suit says.

Wilhelm’s car then “continued its trajectory by rolling up and over the driver’s side of the Modisette car,” the suit claims.

The crash caused extensive damage to the driver’s side of the Modisettes’ car, and rescue workers had to extract both the father and 5-year-old Moriah from the car, the suit says.

The father was in critical condition after the crash while the mother and daughter Isabella were taken to a regional medical center to be treated for injuries. Moriah was airlifted to the area children’s hospital where she later died from her injuries, according to the suit.

“Wilhelm told police at the scene that he was using FaceTime on his iPhone at the time of the crash, and the police located his iPhone at the crash scene with the FaceTime application still active,” the suit claims.

The Modisettes contend in their suit that, “At the time of the collision in question, the iPhone utilized by Wilhelm contained the necessary hardware (to be configured with software) to automatically disable or ‘lock-out’ the ability to use [FaceTime] … However, Apple failed to configure the iPhone to automatically ‘lock-out’ the ability to utilize ‘FaceTime’ while driving at highway speeds, despite having the technical capability to do so.”

Wilhelm was indicted on manslaughter charges by a grand jury in Denton County, Texas, according to the Denton Record-Chronicle. He has been out of jail on bail since August, and a jury trial in the case is scheduled for Feb. 27, the Record-Chronicle reports.

Wilhelm’s lawyer, Ricky Perritt, issued the follow statement: “The Wilhelm family offers their thoughts and prayers for the family of the young lady who lost her life in this tragic accident. We are confident that after all the facts are brought out in Court, it will be shown that the use of a cellular device did not contribute and Mr. Wilhelm did not commit a crime … it was simply an accident.”

ABC News reached out to Apple but did not receive a comment on the case.

In: abc

I ‘Went Back to China’ — and Felt More American Than Ever

Six years in Hong Kong showed me how deep racism runs in Asia’s world city.


On Oct. 9, New York Times metro reporter Michael Luo revealed that he and his family had been subject to a racist outburst on the streets of New York City’s posh Upper East Side. Readers, especially of Asian descent, were quick to volunteer their own stories in the aftermath, showing that while racism against Asians is not always in the U.S. public eye, it is widespread. I’d like to address this article to the woman who told the U.S.-born Luo — and to all those who may have harbored similar sentiments at one point or another — to “go back to China.”

My parents left China in the wake of Mao Zedong’s Cultural Revolution to seek refuge in American higher education in the 1970s, eventually becoming entrepreneurs. I was born in Ohio, raised in Nebraska and California, and attended Yale University in Connecticut. Six years before that woman on the streets of New York told Luo to go back to China, I had already done so. After graduating college, I moved to Hong Kong, a port city that has been the West’s gateway to China since the mid-1800s.

I believed the city, a place brutalized and molded by colonial forces before its return to China in 1997, was somehow like me: an East-meets-West pastiche. I also believed that Hong Kong, more multicultural, global, and outward-looking than any mainland city, was likely to be the most racially enlightened. But after more than six years of living and working there, I would learn just how racially progressive the United States was by comparison. It’s not just because anyone can speak up and defend themselves, but because doing so is embedded in our culture.

Growing up in Nebraska, I was “ching-chong’d” in school and asked why my eyes were so small. Later on, popular kids would compel me to do their homework with overtures of friendship, only to ignore me at recess. Even in relatively liberal California, I was bullied and shut out by the girls in my all-white Girl Scout troop. My early life in white, Christian America impressed upon me the notion that my real home, my real friends, was where my parents had left it — back in China.

In college, I devoted myself to the notion. I holed myself up exclusively in Asian cultural clubs and worked to beef up my half-hearted, lisping Mandarin Chinese. I took classes in Chinese philosophy, sociology, and politics. Internships in Beijing and Shanghai and travels around the mainland gave me a glimpse of what my new home would be like. After graduation, I secured a job in Hong Kong.

My mother, who had moved from Shanghai to Hong Kong to the United States, was distraught: “Why do you want to go back there?”

But much, I insisted, had changed. The mainland wasn’t the Mao-era hot mess she’d left behind; the 2008 Beijing Olympics painted a glorious image of a new Middle Kingdom, and Lehman Brothers’ collapse that same summer foretold an ominous future for the United States. Out in the dizzying economic rise of the Wild Wild East, opportunities abounded for those willing to work in a globalizing China, particularly in Hong Kong, which billed itself as “Asia’s world city” and was also deepening ties with the mainland.

What I didn’t tell my mother was that my desire to leave was primarily motivated by the possibility of escaping the unfriendly U.S. racial climate. In Asia, I wouldn’t have to deal with being “Asian.” I wouldn’t be a minority, much less a model one. For once, I was certain, my race wouldn’t matter.

I moved to Hong Kong in 2010 to work for a multinational education company and cast myself with a privileged lot of expatriates, or huayi — ethnic Chinese who have grown up abroad. It was deeply comforting to be surrounded by people who looked like me. And because I spoke perfect English and had attended an Ivy League university, my social currency in status-conscious Hong Kong went further than most. I was not just able to “blend in” — I was privileged. I was heard, respected, and invited to glittering parties. Those first years in Hong Kong were beautiful and easy.

But eventually my conscience began to gnaw at me. At work, invisible walls divided colleagues by skin color. White managers who had worked all their lives in Asia sometimes looked surprised when I spoke up in perfect English to volunteer my opinion — a small thing, but revealing. A few seats away from my desk sat Filipino colleagues, often ignored or greeted with terse, awkward smiles when they tried to make conversation. I saw a Pakistani colleague of mine held at arm’s length during team happy hours, lonesome with his glass of wine while his colleagues buzzed around him. A Sri Lankan friend of mine working in investment banking cried when she was passed over for a raise once again.

The city’s thorny relationship with race was even more obvious outside of work. I remember dining with an Indian companion and being thoroughly ignored by the waitstaff, even beyond the standards of usually brusque Hong Kong service. Locals regularly complained to me about being paid less than their expat counterparts. And on the streets, images of hapa women, men, and babies — half white, half Asian — were featured prominently on billboard ads, the city’s aspiration to whiteness hiding in plain sight.

Hong Kong is also home to hundreds of thousands of Filipino and Indonesian domestic workers — 320,000, as of 2013. On Sundays, their day off, Hong Kong’s otherwise mostly hidden domestic helpers swarm public parks, much to the chagrin of locals who I’d hear complain of what they saw as their parks being “overrun.” Workers who have served Hong Kong families loyally for decades cannot become permanent residents, dependent instead on a work visa that could be stripped from them at any moment. The 2016 Global Slavery Index — compiled by the Australia-based nonprofit Walk Free Foundation, which tracks government action on forced labor, human trafficking, and other conditions of modern slavery — ranked Hong Kong’s government in the bottom 5 percent worldwide. Reports surface regularly about domestic workers being beaten or sexually abused by their employers. These people served me cocktails, cooked the food I ate, bussed my plates without a sound, painted my nails, massaged me, and cleaned my apartment. “That’s just capitalism,” my erudite friends would say, but I couldn’t shake the truth that my privilege floated on cheap Southeast Asian labor and the diminished social position they occupied.

With each year that passed, I became increasingly aware of the morally fragile foundations of the lifestyle I enjoyed. I had believed that spiriting myself to Hong Kong would mean that I wouldn’t have to face racial discrimination anymore. Bewitched by the possibility of transcending the racial totem pole, I only later realized that I had merely relocated to the top, and the view wasn’t what I expected. Being brought up in the United States meant my standards for racial equality were forged in a culture built around the dissent, dialogue, and disruption that the First Amendment vouchsafes.

It was only after six years in Hong Kong that I began to understand why people leave their countries to come to the United States and why it’s so difficult to repatriate. You can’t unlearn what you’ve learned or unsee what you’ve seen. Neither could I unlearn the promises of equality that I’d repeated every time I took the Pledge of Allegiance.

I had been running away for a long time. I had run away from being a “victim” of American racism to become part of the perpetrating class in Hong Kong. I had hid from the yellow face in the mirror and pretended, with my perfect English and my elite education, that I was someone else. I had tried to “go back to China,” only to find myself more American than I’d realized. But I’m not running away anymore. I’ve found that my “home” isn’t limited to a physical place. It’s not in Hong Kong, China, or the United States. It’s in the people I love and the work that needs doing. It’s in the values I hold that grow and change over time.

So, to all those who have ever wanted people like me to “go back” to China: My home is on a bridge as short as a hyphen and as wide as the Pacific Ocean. My home is an in-between place, as it is for all Americans who remember their roots, their history, and the journey that got them here. My home is a compromise, a discussion, a negotiation.

In: foreignpolicy 

North Carolina is no longer classified as a democracy

Britain’s Prince Charles Says Anti-Immigrant Populism Echoes Nazis

LONDON — The heir to Britain’s throne spoke out Thursday, saying the wave of anti-immigrant populism sweeping the world has “deeply disturbing echoes” of the Nazis’ persecution of Jews in the 1930s.

Prince Charles, the queen’s eldest son, said his parents’ generation “fought and died in a battle against intolerance, monstrous extremism and an inhuman attempt to exterminate the Jewish population of Europe.

“That nearly 70 years later we should still be seeing such evil persecution is to me beyond all belief,” he added. “We owe it to those who suffered and died so horribly not to repeat the horrors of the past.”

He made the comments as a guest contributor on “Thought for the Day,” a scripted monologue broadcast each morning during BBC Radio 4’s breakfast news show, “Today.”

The prince was urging listeners to be more compassionate about migrants and refugees. Some 65.3 million people across the world have been forced to leave their homes, according to the United Nations.

“We are now seeing the rise of many populist groups across the world that are increasingly aggressive to those who adhere to a minority faith,” Charles said. “All of this has deeply disturbing echoes of the dark days of the 1930s.”

Image: Prince Charles

Prince Charles gives a speech in London on December 14. REX/Shutterstock / Shutterstock

The prince did not cite any politician or party but his comments apparently refer to the wave of anti-immigrant populism linked to the victories of Donald Trump and Britain’s Brexit campaign.

These election wins have emboldened far-right groups across Europe, some of whom are now eyeing success in other elections. In England and Wales, incidents of religious or racist abuse rose 41 percent in the month after the Breixt vote in June, according to government figures.

Charles also linked the refugee crisis to Christianity and Islam.

“I wonder if this year we might remember how the story of the Nativity unfolds with the fleeing of the holy family to escape violent persecution,” he said. “And we might also remember that when the prophet Muhammad migrated from Mecca to Medina, he did so because he too was seeking the freedom for himself and his followers to worship.”

In: nbc 

Lescano: “Una generación sin porno se va a dedicar más al deporte y al estudio”

El congresista de Acción Popular explicó a RPP Web todo sobre el proyecto de Ley para suspender el contenido pornográfico en internet.

De aprobarse este Proyecto de Ley solo forjará futuros expertos en ingeniería de sistemas, hackers y crackers improvisados en el Perú.

De aprobarse este Proyecto de Ley solo forjará futuros expertos en ingeniería de sistemas, hackers y crackers improvisados en el Perú.

Del Congreso de la República depende el destino de las páginas pornográficas en el Perú. El proyecto de Ley que presentó el legislador Yonhy Lescano (Acción Popular) busca limitar el contenido para adultos en las páginas para que ni chicos ni adultos puedan tener acceso a él

Aunque todavía no ha pasado a las comisiones congresales para que sea evaluado y votado, la iniciativa ya ha generado reacciones diversas en Facebook y Twitter. Que es decisión de cada uno, que corta las libertades. Los argumentos en contra son diversos. Lescano conversó con RPP Web sobre su proyecto y explicó el motivo que lo llevó a presentarlo.

“Una generación sin pornografía se va a dedicar más al deporte y al estudio. La pornografía produce adicción y distorsiona la conducta sexual de las personas, están estimulados (por lo que ven) y así van a violar a niños o mujeres”, dijo el legislador.

Los antecedentes. Tomó como ejemplo los casos de Corea del Sur y el Reino Unido. En el primer país, la restricción a este tipo de páginas es total, incluso Lescano comentó que en una visita pudo comprobar que esto se cumple estrictamente. Intentó ingresar a una de estas páginas y no tuvo éxito. “El sistema funciona muy bien allá”, dice.

En el segundo país las restricciones son parciales. Sin embargo el Congreso ha cerrado cada vez más el cerco a la industria en tema de contenidos y de inscripciones. Estos son los principales ejemplos del acciopopulista para crear el proyecto en el Perú.

“En otros países pasa, donde se ha impulsado la educación hay un mejor nivel educativo. Se ha prohibído estas páginas para evitar delitos sexuales y se ha conseguido, en Corea del Sur por ejemplo. Pensamos que esto es importante para evitar delitos sexuales”, dice.

Presentó el proyecto que creó con el apoyo de sus colegas de bancada que están de acuerdo con la medida. Sobre las voces críticas que aluden a una distorsión en las libertades, el legislador responde tajantemente: “La libertad debemos canalizarla adecuadamente. (El porno) La distorsiona, tiene más efectos negativos. ¿Qué cosa que tenga que ver con el interés público tiene la pornografía?, ¿Qué libertad se corta?, absolutamente nada”, comenta con voz enérgica.

¿Recorte de libertades?

No hay comparación entre la internet y el contenido televisivo, al menos en este caso para Lescano. “La pornografía es pornografía, no se puede comparar con los contenidos televisivos. En otros países los chicos tienen primer nivel porque no los envenenan con estos contenidos. Somos muy permisivos en aras de la llamada libertad, yo creo que es una distorsión de la libertad”.

Ahora la pelota rodará en el campo de las comisiones de Educación y Transporte, donde será probablemente discutido este proyecto, informó a RPP Web el congresista. Si es aprobado, irá al Pleno donde deberá ser refrendado por la mayoría. Entonces la realidad de un país sin pornografía sería realidad.

El siguiente paso sería ordenar a las empresas de comunicaciones a que bloqueen los contenidos. Y luego, la reglamentación para que los infractores cumplan una pena y para que no se le saque la vuelta a la ley. “Las empresas tienen que cumplir las medidas. Veo como padre y político que esto (el contenido porno) no nos trae nada bueno, hay que preguntarle a los papás y las mamás si están de acuerdo”, aseguró.

El congresista sabe que se acercan días de intenso debate, el mismo que ya empezó en las redes y que continuará por varios días más.

En: rpp

Proyecto de Ley aquí: PL-00825-2016-1221

Proyecto de Ley en página del Congreso de la República del Perú

South Carolina lawmakers propose pornography block on new computers

State Rep. Bill Chumley, R-Spartanburg, said the Human Trafficking Prevention Act would require manufacturers or sellers to install digital blocking capabilities on computers and other devices that access the internet to prevent the viewing of obscene content.

Representative William M. "Bill" Chumley. In:

Bill sponsor: Representative William M. “Bill” Chumley. In:

By Brendan O’Brien

Computers and devices sold in South Carolina that can access the internet would be required to have filters installed to prevent people from viewing pornography, although buyers could pay a $20 fee to remove the blocking software under a proposal before the legislature.

The amendment would require manufacturers or sellers of computers and internet-accessible devices to install software that blocks pornography, according to a draft of the amendment filed with the South Carolina General Assembly on Dec. 15.

One of its sponsors said on Tuesday the amendment would help raise money for the state’s task force to combat human trafficking, adding that the measure would not restrict their legal liberties, indicating it would allow for viewing adult pornography.

“This is a way to preserve freedom, not raise taxes and combat a serious problem all in one,” State Representative William “Bill” Chumley, a Republican, said in an interview.

Buyers over 18 in South Carolina would have to pay a $20 fee to have the block removed. Manufacturers or sellers would pay a $20 opt-out fee for each computer or device sold so they didn’t have to install the blocking software, according to the proposed measure.

The amendment did not address any technology challenges or whether the filter would be a barrier to interstate commerce for technology firms that sell their devices nationwide.

There was no timetable for debate and a possible vote. Chumley has told local media that he sees the amendment as a starting point for debate and that the proposal he co-sponsored may be adjusted.

The amendment corresponds with the Republican Party’s national platform that calls for states to get tough on pornography, adding that the internet has become a safe haven for predators.

“Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the lives of millions,” the GOP said in its platform. “We urge energetic prosecution of child pornography, which is closely linked to human trafficking.”

In April, a Republican-backed resolution in Utah declared pornography a public health hazard and an epidemic that normalizes violence against women and children and makes men less likely to want to get married.

(Reporting by Brendan O’Brien in Milwaukee; Additional reporting by Jon Herskovitz in Austin, Texas; Editing by Jeffrey Benkoe)

In: reuters 

See: South Carolina statehouse profile – Representative William M. “Bill” Chumley 

La justicia francesa declara culpable de “negligencia” a Lagarde pero la exime de pena

EFE. 19.12.2016 – 15:35h

La directora-gerente del Fondo Monetario Internacional (FMI), Christine Lagarde, ha sido hallada este lunes culpable de “negligencia” en el ejercicio de sus funciones cuando era ministra francesa de Economía por el Tribunal de Justicia de la República, aunque ha sido dispensada de cumplir pena.

Lagarde se enfrentaba a la posibilidad de ser condenada a un año de prisión y a una multa de 15.000 euros, aunque el fiscal había solicitado su absolución. Lagarde no asistió a la lectura del veredicto en París y, según sus abogados, se halla en Washington, sede del organismo que dirige desde 2011.

Por su parte el FMI anunció tras conocer la noticia una reunión de su Directorio Ejecutivo para “analizar los acontecimientos más recientes”. “El Directorio Ejecutivo se ha reunido en ocasiones anteriores para considerar los acontecimientos relacionados con el proceso judicial de Francia”, recordó en un escueto comunicado el director de comunicaciones del FMI, Gerry Rice, quien agregó que “se prevé” que este órgano “volverá a reunirse próximamente para analizar los acontecimientos más recientes”.

La inesperada condena de Lagarde abre las dudas sobre su continuidad al frente de la institución multilateral. Los tres magistrados y 12 parlamentarios que componen la corte consideraron que Lagarde debió recurrir la atribución de una multimillonaria indemnización al empresario Bernard Tapie en 2008 y que fue “negligente” no hacerlo.

La entonces ministra de Economía y Finanzas había decidido que fuera un arbitraje privado quien decidiera esa indemnización por la venta de la marca deportiva Adidas, que había sido previamente confiscada por la justicia francesa. Los tres árbitros decidieron que el erario público desembolsara más de 400 millones de euros, 45 millones de ellos en concepto de daño moral a Tapie.

La condena no figurará entre sus antecedentes

La sentencia del Tribunal de Justicia de la República, una instancia especial para juzgar a ministros y exministros por delitos cometidos en el ejercicio de sus funciones, encuentra negligente que Lagarde se negara a recurrir esa indemnización “para evitar consecuencias tan nefastas” para las arcas del Estado.

Según el veredicto, Lagarde no escuchó a los miembros de sus servicios que le aconsejaban apelar, lo que habría dejado al Estado en una situación más favorable para negociar con Tapie la indemnización.

Sin embargo, a la luz de la “personalidad” y la “reputación internacional” de Lagarde, los jueces decidieron no imponerle ninguna pena y que la condena no figure en su ficha de antecedentes judiciales, pese a que el delito que le imputaban puede ser condenado hasta con un año de prisión exento de cumplimiento y 15.000 euros de multa.

A eso se aferró su abogado, Patrick Maisonneuve, quien señaló en declaraciones a la prensa que el tribunal no le ha impuesto pena alguna a su clienta. El letrado agregó además que estudiarán la posibilidad de recurrir la sentencia ante el Tribunal Supremo.

Lagarde fue ratificada al frente del FMI este mismo año para prolongar su mandato en el período 2016-2021, después de que no se presentasen rivales en el proceso de selección y por contar con el respaldo de la mayoría de los miembros de la institución, lo que preveía una nueva etapa de estabilidad en el organismo.

Con la condena en Francia, el caso de Lagarde se aproxima al de los anteriores directores gerentes del organismo, Rodrigo Rato (2004-2007) y Dominique Strauss-Kahn (2007-2011), que tuvieron que dejar el cargo antes de cumplir los cinco años preceptivos.


Is Pornography The Same As Prostitution? A New York Judge Says “No,” But the Answer Is Less Clear

Wednesday, Aug. 10, 2005

Jenny Paulino stands accused of running a prostitution ring on the Upper East Side of Manhattan. Among other defense arguments, Paulino moved to dismiss the case on Equal Protection grounds. She claimed that the Manhattan District Attorney’s office selectively targets “escort services” for prosecution, while ignoring distributors of adult films, who are engaged in what is essentially the same activity.

Justice Budd G. Goodman recently issued a ruling rejecting Paulino’s claim, on the ground that pornography does not qualify as prostitution under the relevant New York statute. “[P]rostitution,” said Justice Goodman, “is and has always been intuitively defined as a bilateral exchange between a prostitute and a client.” Therefore, the judge explained, the District Attorney’s office has not ignored one form of prostitution and pursued another, within the meaning of the law.

Though the Equal Protection argument may be weak as a matter of statutory interpretation, the distinction between prostitution and pornography is not nearly as clear as Justice Goodman suggests.

What Is Prostitution?

As Justice Goodman asserts, most of us typically think of prostitution as involving a customer who pays a prostitute for providing sexual services to that customer. We intuit that pornography, by contrast, involves a customer paying an actor for providing sexual services to another actor.

In other words, prostitution is generally understood as the bilateral trading of sex for money, while pornography involves the customer of an adult film paying money to watch other people have sex with each other, while receiving no sexual favors himself in return for his money.

In keeping with this distinction, notes Justice Goodman, “the pornographic motion picture industry has flourished without prosecution since its infancy.” The failure of the New York legislature to do anything about this state of affairs, moreover, further demonstrates that New York’s prostitution statute was never intended to encompass pornography.

Is It Sensible To Exclude Pornography From Laws Against Prostitution?

Justice Goodman may be correct about the statute in question, although the statutory language does not help his position.

New York Penal Law defines a prostitute as a person “who engages or agrees or offers to engage in sexual conduct with another person in return for a fee.” A pornographic actor does just that: Like a more typical prostitute, he or she engages in sex in return for a fee.

Still, as Justice Goodman points out, traditional interpretations of the word “prostitute” narrow the literal definition to exempt pornography.

But that leads to another question: Does the pornography exemption make sense?

Stated differently, the District Attorney’s office has perhaps correctly divined the legislative intent behind the statute at issue, but there might nonetheless be something fundamentally unfair about exempting distributors of nonobscene pornography from the vice laws.

To appreciate the unfairness, let us examine some of the arguments for this distinction.

Free Speech: One Possible Distinction Between Prostitution and Pornography

Most distributors of pornography would express shock at the prospect of being prosecuted for promoting prostitution. Under Miller v. California, as long as a work, taken as a whole, has “serious literary, artistic, political, or scientific value,” the First Amendment protects its distribution. Given this legal principle, how could pornography be criminal, in the way that prostitution is?

One might begin to formulate an answer in the following way. The process of filming and distributing pornography is indeed considered protected speech, under the Supreme Court’s First Amendment precedents. However, the First Amendment does not insulate the commission of crime from prosecution just because someone with a camera records the crime and intends to sell that recording to customers.

In keeping with this portrayal, one could reasonably characterize pornography as the payment of prostitutes for having sex in front of a camera. Though the film itself might be protected by the First Amendment, it could nonetheless constitute evidence of paid-for sexual encounters — that is, evidence of prostitution — if a statute were designed to extend to that sort of prostitution.

For clarification, let us take an example from another area of criminal law. Doug the drug-dealer sells Carl the customer eight ounces of marijuana. Both Doug and Carl are guilty of (different) criminal acts for having engaged in this illicit transaction. Assume that there is an audience for such transactions on reality television (all rights reserved). In anticipation of this audience, Fiona the filmmaker pays Doug and Carl to permit her to tape them carrying out their business.

Has Fiona done anything illegal? No, but neither has her First-Amendment-protected act of filming and distributing her recording altered the illegal character of Doug’s and Carl’s conduct. Doug and Carl may still be prosecuted for engaging in a drug transaction, despite the fact that Fiona may not be prosecuted for taping it or showing the tape.

Furthermore, Fiona’s tape may be subpoenaed and used by the District Attorney’s office as evidence of the drug transactions charged against Doug and Carl.

Some Possible Differences Between Filming Drug-Dealing, and Filming Pornography

To be sure, there are some differences between Fiona and the pornography distributor, which might translate into differences between pornographic actors, on the one hand, and Doug and Carl, on the other.

In our example, Doug and Carl have engaged in a drug transaction, and the only element that Fiona has added to the mix is her filming of that transaction. In the case of pornography, however, the actors having sex are doing so precisely because they are being filmed. The taping, in other words, is not just “evidence” of their having sex; it is the entire point of that sex. In pornography, then, the recording is an integral, rather than a peripheral, part of the transaction.

What this means is that unlike Doug and Carl, the people who have sex for the camera are actors, and acting — unlike drug-dealing or prostitution — is part of what falls within the protection of the First Amendment.

A better analogy to pornography might therefore be a film-maker paying Doug and Carl to act as though they are dealing drugs for the camera when in fact they are not. In such a case, of course, there would be no grounds for prosecuting the two men.

Not So Fast: Does the Pornographic Actor/Prostitute Distinction Really Work?

The distinction between pornography and prostitution is not, however, quite so straightforward as the latter analogy suggests. A couple having actual sex for the camera — let’s call the people Jason and June — is different from Doug and Carl pretending to deal drugs. Doug and Carl really are just acting, but having intercourse is not just acting — it is also bona fide sex.

That is what distinguishes a pornographic film from a film in which people pretend that they’re having sex when they are not. In that sense, the reality TV example of Doug and Carl may be more like adult film than it initially appeared to be. Doug and Carl truly are dealing drugs and there is also filming going on, just as Jason and June really are having sex and there is also filming going on.

Why Real Sex is Not Like Acting, From the Law’s Point of View

But why should the distinction between pretending to have sex, and actually having it, make a difference, from a legal standpoint?

The sex act is a legally significant event. If it occurs without consent, it is rape. If it takes place between a married person and a third party, it is adultery. If it occurs and leads to the birth of a child, then the man is legally responsible for that child until the age of 18. And if it happens in exchange for a fee, then it is prostitution.

Pretending to have sex, however, for a camera or in private, triggers none of these legal consequences and can therefore be characterized as mere acting.

Who Is Paying Whom and Should It Matter?

When pornography is correctly understood as involving real sex, the question in comparing pornography to prostitution becomes whether who is paying whom matters (or should matter) to the law. That is, should it make a difference whether Jason pays June to have sex with Jason or whether, instead, Filmore (the filmmaker) pays June to have sex with Jason?

If these two scenarios seem functionally equivalent, then there may be something seriously wrong with our laws.

Consider the following example. Jason has just turned 21, and he is a virgin. His uncle Lecher believes that Jason should have some experience with sex before he finishes college, so Lecher pays June (a family friend) to have sex with Jason. Jason happily accepts this gift, and June carries out her side of the deal.

It does seem that in this example, prostitution has taken place. The payor may not be the same person as the recipient of sexual services, but so what? In all relevant respects, this transaction appears to fall within any reasonable definition of prostitution, with June in the role of prostitute and either Lecher or Jason or both (depending on the state of mind of each of them with respect to the quid pro quo) in the role of customer. Justice Goodman’s emphasis on the bilateral nature of prostitution no longer seems well-placed.

How are Adult Films Different?

If it “intuitively” seems like prostitution even when a third party pays someone to have sex with another third party, then what makes adult films so different? Is it the fact that Uncle Lecher is not seeking his own sexual gratification (in the way that a customer of pornography is) but someone else’s (Jason’s)? If so, then assume that Uncle Lecher wants to watch June and Jason having sex. That added feature hardly seems to mitigate the character of the act as prostitution.

Is the important difference instead the fact that Jason, the college student, is seeking sexual gratification from June, the prostitute, while neither Jason the porn star nor June the porn star are seeking sexual gratification for themselves? If that matters, then assume that Jason the porn star loves his work (and could be earning a lot more as a regular actor), so he is as interested in sexual gratification as Jason the college student is.

On these facts, in both pornography and conventional prostitution, people are having sex with other people as a condition of getting paid, and someone seeking sexual gratification but not money is ultimately driving the demand for the activity (the customer of the prostitute, in one case, and the future viewer of the pornography, on the other).

The First Amendment Returns: Why the Court Protects Pornographic Films

Having said all of this, it is nonetheless almost certain that on its current precedents, the U.S. Supreme Court would hold that garden-variety pornographic actors are indeed engaged in First-Amendment-protected activity, so long asobscenity – as defined by the Miller test, quoted in part above — is not involved. Odd as it may seem, what appears finally to make all of the difference is the mode of gratification for the person who is paying but not himself seeking money.

The ultimate demand for pornography comes from the viewer of pornography, and what excites him is the watching of the adult film, rather than any physical act performed on him by another person. The “enjoyment” of pornography is therefore as “speech,” rather than as action.

Though real sex occurred in the making of the pornographic film, this fact is only relevant insofar as it is known (or believed) by the viewer. If, for example, the entire film were created with highly realistic computer graphics, but the viewer believed that what he saw was real, then he would enjoy the material just as much.

Because the impact of pornography occurs through the mediation of an audience witnessing a performance, rather than an audience receiving physical services from a performer, pornography and its making qualify as First-Amendment protected speech.

Does this make sense? Consider again the significance of the sexual act: legal consequences can follow from it and it can, accordingly, be regulated by the law in a variety of ways. Though two people may very much want to have sex with each other in private, the law can intervene to say that they cannot, just because one of them seeks money and the other gratification, for example.

If, however, both members of the couple are in it for the money, and there is a man with a camera taping them so that millions of people can buy or rent the tape and masturbate to it, then the sex is insulated by the Constitution from legal regulation.

That is in fact the law, but Jenny Paulino can hardly be faulted for calling it arbitrary.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her columns on criminal law and procedure, among other subjects, may be found in the archive of her work on this site.

In: findlaw


Milwaukee ordinances required certain licenses before a business was permitted to offer nude or partially nude entertainment. Six Star, which applied for a license, and Ferol, which did not apply challenged these ordinances, seeking injunctive relief and damages. Once the ordinances were repealed, they dropped their requests for injunctive relief but continued to pursue damages. The district court held that the ordinances addressed time, place, and manner of expression, but did not include the necessary procedural safeguards. A jury then decided that but for the unconstitutional ordinances, Ferol would have opened a club providing nude entertainment. It awarded Ferol compensatory damages in the form of lost profits, and gave Six Star nominal damages. The Seventh Circuit affirmed, rejecting the city’s argumens that Ferol had no injury and therefore no standing to challenge the ordinances, and its challenge to Ferol’s theory of causation and the award of nominal damages to Six Star. View “Six Star Holdings, LLC v. City of Milwaukee” on Justia Law.



LYNN ADELMAN, District Judge.

Since 2009, plaintiffs Six Star Holdings, LLC and Ferol, LLC have sought to open night clubs featuring erotic dance entertainment in the downtown area of the City of Milwaukee. In order to both serve liquor and present erotic dancing,

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the plaintiffs had to obtain two licenses under the Milwaukee Code of Ordinances: a tavern license and a “tavern amusement” license. In August 2010, each plaintiff applied for both licenses, and the City denied their applications. A year later, in September 2011, plaintiff Six Star decided to open a night club that featured erotic dance entertainment but did not serve alcohol. Six Star thought that to open such a “dry” gentlemen’s club, it needed to be licensed to operate a theater. It therefore applied for a theater license. However, the City never acted on that application. Instead, a few months after Six Star applied for a theater license, the City repealed the chapter of the Code of Ordinances that provided for issuance of theater licenses. At the same time, the City also repealed the ordinance governing tavern-amusement licenses as well as a related ordinance governing “public entertainment clubs.” The City replaced these ordinances with new ordinances governing “public entertainment premises.”

In the present lawsuit, which arises under 42 U.S.C. § 1983, the plaintiffs allege that the former ordinances governing tavern amusement, theaters, and public entertainment clubs violated the First Amendment. They also allege that the tavern, tavern-amusement, and theater ordinances were unconstitutionally applied to them. The plaintiffs do not seek any injunctive or other form of prospective relief, and they do not bring any claims involving the newly enacted ordinance governing public entertainment premises. Instead, they seek only damages for the time period in which the repealed ordinances (and the tavern ordinance, which is still in force) prevented them from offering erotic dance entertainment in the City. Before me now are the parties’ motions for summary judgment.


The plaintiffs are managed by John Ferraro, who is the manager of three existing erotic dance establishments in Wisconsin, each named Silk Exotic Gentlemen’s Club. One of these establishments is located in the City of Milwaukee, although not in the downtown area. In 2009, Ferraro formed Ferol and leased premises located on Pittsburgh Avenue in downtown Milwaukee, intending to open a new erotic dance establishment, named Satin. Because Satin would have offered both liquor and erotic entertainment, Ferol needed to obtain both a tavern license and a tavern-amusement license. Ferol applied for both licenses in July 2009. Once the applications were filed, the alderman for the district in which Satin was to be located informed his constituents of Ferol’s proposal. Many in the neighborhood voiced opposition to the proposal, and Ferol’s lawyer advised it that, based on the amount of public opposition, the applications were sure to be denied. Under the Code of Ordinances, when a license application is denied, the applicant is disqualified from applying for the same license for the same premises for one year. See Milwaukee Code of Ordinances § 85-13-4-a. After considering the advice of its lawyer, Ferol decided to withdraw its applications rather than risk having the applications denied and being prohibited from reapplying for one year.

In August 2010, Ferraro decided to reapply for tavern and tavern-amusement licenses for Satin. He also decided to attempt to open a third erotic dance establishment in the City of Milwaukee and formed Six Star for the purpose of operating that establishment, which would have been named Silk East. Six Star proceeded to execute a lease for a location on Old World Third Street in downtown Milwaukee and to apply for the necessary tavern and tavern-amusement licenses.

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Soon after Ferol and Six Star filed their applications, community members expressed opposition to the proposals. However, rather than withdraw their applications, both Ferol and Six Star decided to proceed to a hearing before the Licenses Committee of the Milwaukee Common Council, which was held on September 20, 2010. During the hearing, the Committee heard testimony from members of the communities surrounding each proposed establishment. The plaintiffs had lawyers present and were permitted to cross-examine the community members who testified in opposition to the applications. The plaintiffs were also permitted to present their own witnesses in support of their applications.

The Committee heard Six Star’s applications first. Sixteen witnesses testified in opposition to its proposal for the Old World Third location. Ten of those witnesses represented commercial interests in the neighborhood, such as existing retail stores, hotels, and business associations. They almost uniformly opposed using the location as an erotic dance establishment on the ground that such a use would have been inconsistent with a development plan that had been adopted for the neighborhood. The business representatives testified that the goal of the development plan was to attract more retail establishments to the neighborhood, such as clothing stores and other shops, and that the presence of a gentlemen’s club would deter retailers from moving in. Most of the remaining witnesses were residents of the neighborhood, including individuals who lived in apartments above the proposed location. Those witnesses expressed concern about the noise that the proposed establishment would generate, about the safety of the neighborhood given the kind of clientele adult establishments are known to attract, and about the effect of the establishment on property values. Some of the residents also noted that the area was already oversaturated with bars and night clubs. One resident, Francisco Camacho, indicated that he found erotic dancing offensive. He testified that he opposed both Six Star’s and Ferol’s proposals on the ground that erotic dancing perverts the community and is against the teachings of Islam.

Alderman Bauman, the alderman for the district, testified in opposition to Six Star’s applications. He mostly emphasized the concerns of the business community and their efforts to turn the area into one focused on shopping and retail. As he explained:

There is an inherent conflict between trying to generate retail and commercial with a gentlemen’s club. Forget the morality issue, forget the propriety of it all, just look at the economics of it. They are somewhat different markets. They are looking for different things by their very definition. And you’re not going to put an American Girl’s store next to a gentlemen’s club on Chicago Avenue and Michigan Avenue, for example. They are conflicting markets. You’ve heard from the downtown. The City of Milwaukee has invested, I believe it’s $50,000 with a match from the downtown stakeholders of another $50,000 for a $100,000 fund to attempt to catalyze downtown retail investment. Again, we’re working at cross purposes. If we allow clubs that will retard that retail development, our investments are making no sense.

Continuation of Licenses Committee Hearing Tr., Sept. 20, 2010 at 12-13, ECF No. 61-2.

Once all testimony had been taken, the Committee discussed Six Star’s applications. Alderman Hamilton moved to recommend that the Common Council deny the applications on the ground that granting the licenses would be contrary to the

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health, safety and welfare of the neighborhood. He explained that his motion was based on the inconsistency between an erotic dance establishment and the kind of retail environment that the neighborhood was trying to create, and also on the residents’ “resounding opposition” to the proposal. See id. at 19-20. The Committee voted to recommend that the Common Council deny Six Star’s applications. The vote was unanimous.

Turning to Ferol’s applications, the Committee heard testimony from eleven witnesses who opposed the proposal. The witnesses included representatives of the business community and residents of the neighborhood. Both the residents and the business representatives stated that the proposal was inconsistent with a development plan that had been adopted for the area. As one witness explained, the development plan called for a mix of residential and retail uses, including so-called “mixed” uses in which retail or commercial establishments occupied the first floor of a building and residential units occupied the upper floors. See Continuation of Licenses Committee Hearing Tr., Sept. 20, 2010 at 22-25, ECF No. 62-1. The plan specified that the commercial uses in the neighborhood would be “boutique-scaled,” which meant that they would be small-scale businesses such as boutique retailers and design showrooms. Id. at 22-23. The witness explained that the proposal for Satin involved a large facility (20,000 square feet and up to 1,000 to 1,200 patrons per day) that was significantly out-of-scale with this focus on boutique uses. The witness further explained that there was not enough parking in the area to support a facility of that size. Other witnesses echoed this concern about adequate parking. Still other witnesses expressed concern about the effect of the proposal on residential property values and on neighborhood safety, and about potential noise and traffic issues.

Alderman Witkowiak, the alderman for the district, also testified in opposition to Ferol’s applications. He mostly reiterated the concerns expressed by the community members who testified in opposition to Ferol’s applications. He explained that the proposal was too large and out-of-scale for the neighborhood, that there would be inadequate parking space to support the proposal, that the proposal was inconsistent with the development plan for the area, and that some residents were concerned about safety and property values.

Once all testimony had been taken, the Committee discussed Ferol’s applications. This time, Alderman Kovacs moved to recommend that the Common Council deny them. He cited the overwhelming objections by the residents and businesses in the neighborhood and potential parking and traffic problems. The Committee unanimously voted to recommend that the Common Council deny Ferol’s applications.

The next day, September 21, 2010, the Common Council voted to accept the Licensing Committee’s recommendations on Six Star’s and Ferol’s applications for tavern and tavern-amusement licenses.

Approximately one year later, Six Star decided that it would attempt to operate the Old World Third location as a “dry” gentlemen’s club — i.e., a night club that featured erotic dance entertainment but that did not serve alcohol. Six Star thought that it needed a theater license under Chapter 83 of the Code of Ordinances to operate such an establishment, and on September 14, 2011, it applied for such a license. Pursuant to its usual practice, the City Clerk’s office notified the alderman for the district that the application had been filed. That was Alderman Bauman, and he instructed the City Clerk to “hold” Six Star’s application. Because of this hold, Six Star’s application was not set for a hearing before the Licenses Committee, and no action was ever taken on

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the application before the City repealed Chapter 83.


A. Claims Involving Tavern and Tavern-Amusement Licenses

The plaintiffs’ primary claims are that the tavern-amusement ordinance, which, before March 1, 2012, appeared in Chapter 90 of the Milwaukee Code of Ordinances,1was unconstitutional on its face and unconstitutionally applied to them. However, the tavern-amusement ordinance did not, by itself, prevent either plaintiff from operating taverns that featured erotic dance entertainment. Rather, the plaintiffs needed both tavern licenses and tavern-amusement licenses to open the kind of nightclubs they planned to open.2 The City considered the plaintiffs’ applications for both of these kinds of licenses together at the same hearing and denied them both for the same reasons. See Licenses Committee Hearing Tr., Sept. 20, 2010, at 2, ECF No. 59-1; Continuation of Licenses Committee Hearing Tr., Sept. 20, 2010, at 3, ECF No. 62-1. The plaintiffs have not argued that the tavern-licensing ordinance was unconstitutional on its face and have not clearly developed any argument showing that it was unconstitutionally applied to them. Yet, unless plaintiffs could show that the tavern-licensing ordinance was either unconstitutional on its face or unconstitutionally applied to them, they would not be entitled to damages even if the tavern-amusement ordinance were invalidated. Nonetheless, the arguments that plaintiffs make against the tavern-amusement ordinance to a certain extent imply that the City applied the tavern-licensing ordinance unconstitutionally, and the City does not argue that it is entitled to summary judgment on the ground that the plaintiffs have not brought a proper challenge to the tavern-licensing ordinance. Thus, I consider plaintiffs to be challenging the tavern-amusement ordinance both on its face and as-applied, and the tavern-licensing ordinance as-applied.

Turning to these challenges, the plaintiffs’ first argument is that the City imposed a “prior restraint” on speech without complying with the strict procedural requirements governing prior restraints. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). However, the Seventh Circuit rejected that very argument in Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121 (7th Cir.2001). There, the Seventh Circuit considered a challenge to a City of Milwaukee tavern-licensing decision that was in all material respects the same as the challenge the plaintiffs bring in the present case — a challenge involving the City’s denial of a tavern license and an appropriate tavern-amusement license for a tavern that wanted to present erotic entertainment.3 The court framed

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the question presented as whether the City was permitted to take into account, in deciding whether to grant the licenses, “the character of the entertainment that the plaintiff served with its drinks.” Id. at 1123. The plaintiff had argued that, in answering that question, the court should treat the City’s licensing requirements as prior restraints. However, the court rejected that argument and evaluated the City’s requirements under the standards applicable to time, place, or manner restrictions. Id. Accordingly, in the present case, I must treat the City’s licensing requirements as time, place, or manner restrictions rather than as prior restraints.4 See also Schultz v. City of Cumberland, 228 F.3d 831, 851 (7th Cir.2000) (“Licensing, though functioning as a prior restraint, is constitutionally legitimate when it complies with the standard for time, place or manner requirements.”).

Blue Canary also establishes that a city’s decision to deny tavern licenses on the basis of the “character” of the applicant’s proposed entertainment is, in general, a permissible regulation of the time, place, or manner of expressive activity. As the court explained, a city is permitted to consider the secondary effects of the entertainment, such as noise, safety, parking and traffic problems, and the general incompatibility of the entertainment with the normal activity of the neighborhood, when making licensing decisions. See 251 F.3d at 1123-25. In the present case, the transcript of the licensing hearing indicates that the City denied the plaintiffs’ license applications for reasons having to do with these secondary effects rather than with disapproval of the content of the proposed expressive activity. The primary reason for denying the licenses for Silk East was that its presence in the neighborhood would have deterred the kind of retailers the community was trying to attract. As the alderman for the district testified, a retailer like American Girl® is unlikely to open a shop next to a gentlemen’s club. This was a permissible basis for denying the licenses. See id. at 1124 (“Countless cases allow municipalities to zone strip joints, adult book stores, and like erotic sites out of residential and the classier commercial areas of the city or town. Establishments that purvey erotica, live or pictorial, tend to be tawdry, to be offensive to many people, and to attract a dubious, sometimes a disorderly, clientele. Liquor and sex are an explosive combination, so strip joints that sell liquor are particularly unwelcome in respectable neighborhoods.”). Likewise, the decisions to deny the licenses for Satin were based on its incompatibility with the neighborhood — the community members testified that the proposal was out-of-scale and that it would present parking, traffic, and safety issues. Again, a decision based on such secondary effects rather than on disagreement with the content of the expressive message qualifies as a permissible time, place, or manner regulation.5

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The plaintiffs argue that the City’s decisions cannot be upheld under a secondary-effects rationale because the City did not produce formal studies or other credible evidence supporting its conclusion that erotic entertainment generates secondary effects. See Reply Br. at 5-8, ECF No. 75. However, the cases on which plaintiffs rely for the proposition that a city must produce evidence concerning secondary effects involved ordinances that, by their terms, expressly regulated erotic entertainment. See City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir.2009), R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402, 411 (7th Cir.2004). In the present case, neither the tavern-licensing ordinance nor the tavern-amusement ordinance purported to regulate erotic activity specifically. Rather, those ordinances were designed to deal with the direct effects of taverns and the secondary effects of all forms of tavern entertainment. See Milwaukee Code of Ordinances § 90-35-1 (stating that City had found that tavern entertainment “can be a source of noise, litter, large and unruly congregations of people, and traffic and parking congestion that adversely affects the health, safety and welfare of the people of the city of Milwaukee”). No authority of which I am aware holds that a city must rely on formal studies before it may conclude that tavern entertainment has the potential to produce secondary effects such as noise, parking, and traffic problems, or the potential to conflict with the normal activity of a neighborhood. That conclusion would seem to be obvious, just as it is obvious that rallies held in a public park have the potential to generate excessive noise and other secondary effects. See Thomas v. Chicago Park District, 227 F.3d 921, 924 (7th Cir.2000). Moreover, at the licensing hearing, the City did take evidence, in the form of testimony from those in the neighborhood, before concluding that the plaintiffs’ proposals would in fact generate undesirable secondary effects. Blue Canary establishes that neighborhood testimony is appropriate evidence concerning the secondary effects of a proposed form of tavern entertainment. 251 F.3d at 1124-25. Thus, before the City denied the plaintiffs’ license applications, it did consider appropriate evidence concerning secondary effects, and so the City’s decisions were not inconsistent with Alameda Books and related cases.

The plaintiffs also argue that the City cannot satisfy the prong of the time, place, or manner test requiring the government to leave open reasonable alternative avenues of communication. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).6 Although the plaintiffs initially argue that the City cannot show that it left open reasonable alternative avenues for all forms of tavern entertainment — including musical performances, stand-up comedy, dancing, karaoke, and other forms of tavern entertainment — their focus is on the lack of alternative avenues for erotic entertainment.7 Plaintiffs argue that, to carry its burden as to reasonable alternatives, the City must point to parcels of property

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where erotic entertainment was permitted as a matter of right rather than at the discretion of the City’s licensing authorities. However, neither the Supreme Court nor the Seventh Circuit has held that a time, place, or manner restriction leaves open reasonable alternative avenues of communication only if it permits certain forms of expression as a matter of right in designated areas. Thus, the City’s burden is not to point to sites where erotic dancing was permitted without a license. Rather, to satisfy the reasonable-alternatives requirement, the City must show that it did not exercise its licensing authority in a way that resulted in an unreasonable restriction on erotic expression.

To that end, the City has offered evidence as to the number of taverns allowed to present erotic dance entertainment in the City of Milwaukee between 2006 and 2010. There were fifteen taverns that presented erotic entertainment on a regular basis in 2006, fourteen in 2007, ten in 2008, twelve in 2009, and eleven in 2010. Each year, a few other taverns offered erotic entertainment on a part-time or occasional basis. (In 2010, for example, five taverns offered occasional erotic entertainment.) The plaintiffs contend that these numbers are insufficient for a city with a population close to 600,000. However, no evidence in the record indicates that any person who wanted to view erotic dance entertainment in the City of Milwaukee between 2006 and 2010 found it unreasonably difficult to do so.

The plaintiffs contend that even if the number of erotic dance establishments in Milwaukee was sufficient to meet the needs of consumers of such entertainment, a time, place, or manner restriction must also allow those who wish to present such entertainment a reasonable opportunity to present it. That general proposition is true. See North Avenue Novelties, Inc. v. City of Chicago, 88 F.3d 441, 444 (7th Cir.1996) (noting that, when examining availability of reasonable alternatives, “it is necessary to focus both on the ability of producers as a group to provide sexually explicit expression, as well as on the ability of the public as a whole to receive it”). However, the evidence in the record does not show that the licensing requirements left purveyors of erotic entertainment with no reasonable opportunities to operate in the City. True, the licensing ordinance prevented the plaintiffs from opening erotic dance establishments at their chosen locations, but the plaintiffs have not shown that they could not have found alternative locations in the City. Of course, because of the licensing requirements, the plaintiffs could not have known for sure whether they would have been permitted to offer erotic dance entertainment at any specific alternative location unless they actually applied for a license for that location and received a decision on the application, but the plaintiffs have offered no evidence suggesting that they even considered alternative sites, such as sites that were not located in the downtown area.8 Moreover, the plaintiffs have offered no evidence from other would-be purveyors of erotic entertainment indicating that the City’s licensing requirements prevented them from offering

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erotic entertainment within the city limits. To be sure, the plaintiffs point out that a fair number of applications for new erotic taverns were either denied or withdrawn between 2006 and 2010, but no context is given for those denials and withdrawals (other than those involving the plaintiffs’ applications). For example, I have not been told where the proposed taverns would have been located, whether the proposed licensees made reasonable efforts to find alternative locations, or whether the proposed licensees were qualified to hold tavern licenses in the first place. Thus, based on the present record, which includes the fact that a number of taverns featuring erotic dance entertainment operated within the city limits during the time period relevant to this suit — including one operated by the manager of the plaintiffs — I conclude that the City left open reasonable alternative avenues for presenting and consuming erotic dance entertainment.

The plaintiffs also contend that the tavern and tavern-amusement ordinances granted City officials “unbridled discretion” to determine whether to grant or deny such licenses. “Unbridled discretion” is a phrase that derives from prior-restraint cases involving censorship, see Southworth v. Bd. of Regents, 307 F.3d 566, 575-78 (7th Cir.2002) (discussing history of unbridled discretion), but it has been applied in cases in which the prior restraint is analyzed as a time, place, or manner restriction, see Thomas v. Chicago Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). However, in either kind of case, the concern behind the unbridled-discretion standard is censorship — a risk that the licensing authority will use its unduly broad discretion to favor or disfavor speech based on content. Id. The standard is usually applied in circumstances where the law at issue either explicitly involves censorship, such as the law governing the Maryland board of censors at issue in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), or when the law at issue presents a significant censorship risk, such as when a single person is granted power over a newspaper’s ability to sell papers, see City of Lakewood v. Plain Dealer Pub’g Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), or a single person is granted power to decide whether a group will be allowed to hold a rally in a public park, see Thomas, 534 U.S. at 323-24, 122 S.Ct. 775.

In the present case, the tavern and tavern-amusement licensing requirements did not explicitly involve censorship, and they did not present a significant censorship risk. As discussed, the purpose of the licensing requirements was not censorship but to ensure that a proposed form of tavern entertainment was basically compatible with the neighborhood in which it planned to locate. Moreover, it is difficult to envision a realistic scenario in which the Licenses Committee could have used its licensing power to favor or disfavor specific forms of expressive tavern entertainment. As the Seventh Circuit recognized in Blue Canary, the City of Milwaukee is a major city rather than a small town with a homogenous population that is likely to find certain forms of tavern expression offensive and to want to ban them from the City. 251 F.3d at 1124. Thus, there was never any realistic chance that the Licenses Committee would have used its licensing authority to facilitate a campaign to ban rock music, erotic dancing, or any other form of entertainment from the City’s taverns. It is also important to take note of the procedural elements of the licensing ordinances, which required the Licenses Committee to hold a public hearing and make its recommendation to the Common Council in writing. SeeMilwaukee Code of Ordinances § 90-35-4-c; Stip. Facts ¶¶ 25-40, ECF No. 44. If the City’s residents had found a particular form of tavern entertainment offensive and opposed

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a license application for that reason, and the Licenses Committee had recommended denial of the application for the same reason, those events would have been out in the open and could have been remedied through an as-applied challenge. This is in contrast to unbridled-discretion cases like City of Lakewood, in which the decisionmaker could have rendered an as-applied challenge ineffective by denying a license without holding a hearing or identifying the evidence on which he or she relied. 486 U.S. at 769, 108 S.Ct. 2138. Thus, in the present case, the tavern and tavern-amusement ordinances were not invalid on the ground that they vested decisionmakers with unbridled discretion.

The plaintiffs also argue that the tavern and tavern-amusement ordinances do not satisfy United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In that case, the Supreme Court held that a content-neutral regulation that has an incidental effect on expression satisfies the First Amendment if it meets a four-pronged test: “[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377, 88 S.Ct. 1673. Plaintiffs argue that the tavern and tavern-amusement ordinances did not satisfy the first prong of the O’Brien test — that the ordinances be “within the constitutional power of the Government” — and they give two reasons in support of this argument: (1) the ordinances were contrary to Chapter 125 of the Wisconsin Statutes, which relates to alcoholic beverages, and (2) the ordinances were de facto zoning regulations that were not passed pursuant to the state-law procedures that apply to zoning regulations. In making these arguments, the plaintiffs assume that O’Brien’s first prong allows a court to examine whether a municipality complied with state law when passing the regulation at issue. However, I can find no authority that supports this assumption. O’Brien’s first prong is rarely discussed, but there is no indication that it was meant to “constitutionalize” matters of state law.9 Rather, when courts apply O’Brien’s first prong to a municipal regulation, they ask only whether the regulation at issue is of a kind that is within the “general police powers” of a municipality. See Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702, 722-23 (7th Cir.2003). In the present case, there is no question that regulating the locations of taverns and the time, place and manner of tavern entertainment is within the general police powers of a municipality. Id. at 722 (holding that a municipality’s “regulation of alcohol sales and consumption in `inappropriate locations’ is clearly within its general police powers”); Blue Canary, 251 F.3d at 1124. To the extent plaintiffs believe that the City failed to comply with state law when passing the specific ordinances at issue, they may have a claim against the City under state law. However, in the present case, the plaintiffs have brought

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no state-law claims and proceed only under 42 U.S.C. § 1983. See Fourth Amended and Supplemental Complaint ¶ 101, ECF No. 36. Thus, these matters of state law are not subject to review in this case.

Finally, Six Star argues that the City’s decision to deny its license applications was “discriminatory” because the City ultimately granted tavern and tavern-amusement licenses for the Old World Third premises to another applicant, Robert Smith. Six Star contends that the only difference between its proposal and Smith’s proposal was that Smith did not propose to offer erotic entertainment. That appears to be true, but as discussed, the City was allowed to base its decision on “the character of the entertainment” that Six Star intended to present and whether such entertainment was compatible with the normal activity of the neighborhood. Blue Canary, 251 F.3d at 1123. Here, the decision to permit Smith’s tavern but exclude Six Star’s gentlemen’s club is explainable by the fact that the presence of an ordinary tavern in the neighborhood would not have deterred respectable retailers from moving in, whereas the presence of a gentlemen’s club would have. Thus, the City’s having granted tavern and tavern-amusement licenses for the Old World Third premises to a different applicant does not show that the decision to deny Six Star’s applications for the same licenses was based on impermissible factors.

Accordingly, the City’s motion for summary judgment on plaintiffs’ claims involving the tavern and tavern-amusement ordinances will be granted.

B. Theater Ordinance

Former § 83-1-2 of the Milwaukee Code of Ordinances stated that “[n]o person, firm or corporation … shall keep, maintain, conduct or operate for gain or profit, any theater or moving picture house in the city without first obtaining a license therefore.” Section 83-1-1-b defined “theater” as “any edifice, or parts thereof, used for the purposes of dramatic or operatic or other exhibitions, plays or performances for admission to which remuneration or any other consideration is paid, charged or received.” Section 83-1-5-b stated that an application for a theater license “shall be granted when the following requirements are met: the building, structure or premises for which the license is sought must conform in all respects to the provisions of this section and to the law of this state and the ordinances of the city applying to such buildings, structures, or premises.”

In September 2011, Six Star applied for a license to operate the Old World Third location as a theater called the Outer Limits Gentlemen’s Club. The theater would have offered erotic dance entertainment but no alcohol. It is undisputed that, pursuant to a “hold” placed on Six Star’s application by Alderman Bauman, no decision was ever made on Six Star’s application. The theater ordinance was repealed effective March 1, 2012.

The plaintiffs claim that former Chapter 83 was unconstitutional on its face and was unconstitutionally applied to Six Star. I begin with Six Star’s as-applied challenge, which hinges on the fact that the City dragged its heels and never reached any decision on the licensing application before repealing the theater ordinance.10Numerous cases recognize that a licensing or permitting scheme that touches upon expression violates the First

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Amendment when it allows the government to unreasonably delay or postpone a decision on whether to grant or deny a license. See, e.g., City of Lakewood, 486 U.S. at 771, 108 S.Ct. 2138; Freedman, 380 U.S. at 57-58, 85 S.Ct. 734; Vodak v. City of Chicago, 639 F.3d 738, 749 (7th Cir.2011); Thomas, 227 F.3d at 927-28. Here, the theater ordinance was a regulation governing the time, place, or manner of expressive activity — namely, “dramatic or operatic or other exhibitions, plays or performances,” § 83-1-1-b. Thus, to defeat Six Star’s as-applied challenge, the City must offer a legitimate explanation for its failure to render a prompt decision on Six Star’s application to engage in such expressive activity at the Old World Third location.

The City’s primary argument is that Six Star applied for the wrong kind of license. It contends that, in September 2011, the license required for offering erotic dance entertainment in an establishment that does not serve alcohol was the public entertainment club license required by Milwaukee Code of Ordinances § 108-5-1-a (2010). However, even if that were true, it would not have justified the City’s failure to render a decision on Six Star’s application. If the City believed that Six Star had applied for the wrong license, it should have denied the application on that ground. Then, if Six Star thought it had applied for the correct license, it could have challenged the City’s decision in an appropriate legal action.

In any event, the facts in the record do not establish that Six Star applied for the wrong type of license. The public entertainment club ordinance required any person who wanted to offer “public entertainment” to obtain an appropriate license or permit. Milwaukee Code of Ordinances § 108-5-1-a (2010). “Public entertainment” was defined as “any entertainment of any nature or description to which the public generally may gain admission, whether with or without the payment of a fee.” Id. § 108-3-3. This definition included plays and other forms of entertainment that fell within the scope of the theater ordinance. However, one did not need both a theater license and a public entertainment club license to offer the kind of entertainment that fell within the scope of the theater ordinance. This was so because the public entertainment club ordinance stated that the holder of a theater license did not need to obtain a public entertainment club license. Id. § 108-5-2-c. Moreover, nothing in either ordinance indicated that an establishment that wanted to offer erotic dance entertainment could not have operated under a theater license instead of a public entertainment club license.11 The repealed ordinances allowed Six Star to choose which type of license it wanted, and it chose to apply for a theater license. Accordingly, the City could not have denied Six Star’s application for a theater license on the ground that Six Star should have applied for a public entertainment club license instead.12

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Accordingly, because the City has offered no legitimate explanation for its failure to render a prompt decision on Six Star’s application for a theater license, plaintiffs’ motion for summary judgment on the issue of whether the theater ordinance was unconstitutionally applied to it will be granted. This result eliminates the need to address Six Star’s facial challenge to the repealed ordinance.

There is still the matter of Ferol’s facial challenge to the theater ordinance. Ferol never applied for a license under Chapter 83. However, Ferol contends that because the theater ordinance was a prior restraint, it has standing to challenge the ordinance and to obtain damages. As a general matter, it is true that a plaintiff can bring a facial challenge to an allegedly unconstitutional licensing regulation without applying for a license. See City of Lakewood, 486 U.S. at 755-56, 108 S.Ct. 2138. However, in the present case, the ordinance has been repealed, and Ferol’s Article III standing depends on its having sustained damages as a result of Chapter 83’s existence. Yet, the summary-judgment record contains no affidavit or other evidence indicating that Ferol had concrete plans to open a dry gentlemen’s club (as opposed to a tavern) at the Pittsburgh Avenue location or any other location in the City of Milwaukee during the time that Chapter 83 was in force. Thus, I do not see how Ferol could have been damaged by the mere existence of Chapter 83, and so I am not satisfied that Ferol has standing to challenge Chapter 83 on its face. See Summers v. Earth Island Inst., 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (“it is well established that the court has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties”). Therefore, I will not adjudicate Ferol’s facial challenge to Chapter 83 on the merits at this time. However, should Ferol believe that it can establish Article III standing, it may submit appropriate affidavits to that effect and I will reconsider this ruling.

C. Public Entertainment Club Ordinance

The remaining claims are the plaintiffs’ facial challenges to the former public entertainment club ordinance, which appeared in Chapter 108 of the Milwaukee Code of Ordinances. As already discussed in the context of plaintiffs’ claims involving the theater ordinance, Chapter 108 provided that no person could offer any form of public entertainment without obtaining either a public entertainment club license or a theater license. Having ruled that Six Star is entitled to damages in connection with its as-applied challenge to the theater ordinance, I do not need to separately consider Six Star’s facial challenge to the public entertainment club ordinance, as both claims involve the same pool of damages — namely, damages attributable to Six Star’s inability to offer erotic dance entertainment without also serving alcohol at the Old World Third location. Moreover, because the record contains no affidavits or other evidence indicating that Ferol had any concrete plans to offer erotic dance entertainment without also serving alcohol at the Pittsburgh Avenue location or any other location during the time that the public entertainment club license was in force, I am not satisfied that Ferol has Article III standing to bring a facial challenge to the public entertainment club ordinance. See Summers, 555 U.S. at 499, 129 S.Ct. 1142. Accordingly, I do not need

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to reach the merits of plaintiffs’ facial challenges to Chapter 108 at this time. Again, if Ferol believes that it can establish Article III standing, it may submit appropriate affidavits and I will reconsider this ruling.


For the reasons states, IT IS ORDERED that plaintiffs’ motion for summary judgment is GRANTED IN PART and DENIED IN PART, and that defendant’s motion for summary judgment is GRANTED IN PART and DENIED IN PART. Summary judgment is granted to the City on plaintiffs’ claims involving the tavern and tavern-amusement ordinances. Summary judgment is granted to Six Star on the issue of the City’s liability for damages relating to Six Star’s inability to offer erotic dance entertainment without also serving alcohol at the Old World Third location. I do not reach the merits of Ferol’s claims involving the theater ordinance and the public entertainment club ordinance. If Ferol believes that it can prove that it suffered damages that are traceable to those ordinances, then it may attempt to do so during further proceedings.

IT IS FURTHER ORDERED that the parties’ motions to file briefs that exceed the page limitations [ECF Nos. 48 & 54] are GRANTED.

FINALLY, IT IS ORDERED that an in-person status conference will be held on April 11, 2013 at 10:30 a.m. to discuss further proceedings.


1. Before March 1, 2012, sections 90-33, 90-34, and 90-35 of the Milwaukee Code of Ordinances pertained to tavern-amusement licenses. When I use the term “tavern-amusement ordinance,” I am referring to those former sections of the Ordinances.


2. Various provisions in Chapter 90 of the Code of Ordinances pertain to tavern licensing. Section 90-5 specifies the criteria for obtaining such a license, and when I use terms like “tavern-licensing ordinance” or “tavern ordinance,” I am referring to that section.


3. In Blue Canary, the tavern sought renewal of its existing tavern license rather than a new license. However, for present purposes, there is no material difference between renewal of an existing license and denial of an application for a new license.


4. The plaintiffs contend that Blue Canary was wrongly decided. See Opening Br. at 31 n. 4. However, as plaintiffs acknowledge, I am bound by Seventh Circuit precedent.


5. Although the vast majority of the testimony at the hearing focused on secondary effects, at least one community member’s objection to Silk East and Satin was based, in part, on his moral objection to erotic entertainment. See Licenses Committee Hearing Tr., Sept. 20, 2010 at 5-7, ECF No. 59-1 (testimony of Francisco Camacho). However, objections like Mr. Camacho’s were few and far between, and the record of the hearing does not indicate that the Licenses Committee gave those objections any weight. To be sure, the aldermen said that their decisions were based on the “overwhelming” or “resounding” neighborhood opposition to the proposed establishments, and they did not disclaim statements like Mr. Camacho’s, but given that the vast majority of the opposition was based on secondary effects, I cannot conclude that the content-based objections played a causal role in the City’s decision. I also note that, in Blue Canary, at least some of the public opposition to the renewal of the plaintiff’s liquor license was based on “moral disapproval of the entertainment,” 251 F.3d at 1122, yet the court found no constitutional violation in the City’s decision not to renew the license.


6. Under the usual formulation of the test, time, place, or manner restrictions are constitutional if they are content-neutral, narrowly tailored to serve a substantial governmental interest, and do not unreasonably limit alternative avenues of communication. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); City of Renton, 475 U.S. at 46-47, 106 S.Ct. 925.


7. To the extent that plaintiffs actually mean to argue that the City did not leave open reasonable alternative avenues for tavern entertainment in general, it is sufficient to note that there is nothing in the record to suggest that there was a shortage of tavern entertainment in the City of Milwaukee during the period of time for which plaintiffs seek damages.


8. The plaintiffs have not argued that they have a right to offer erotic dance entertainment in the downtown area, as opposed to other areas within the city limits. Moreover, as I have already noted, “[c]ountless cases allow municipalities to zone strip joints, adult book stores, and like erotic sites out of residential and the classier commercial areas of the city or town.” Blue Canary, 251 F.3d at 1124.


9. Plaintiffs cite various cases in which courts reviewed municipal ordinances for compliance with state laws, but in none of those cases did the court purport to be applying the O’Brientest. Instead, it appears that the courts were adjudicating state-law claims. See, e.g., Ravenna Road Mgmt. v. City of Twinsburg, 450 F.Supp.2d 782, 785-86 (N.D.Ohio 2006); Northshor Experience, Inc. v. City of Duluth, 442 F.Supp.2d 713, 718-19 (D.Minn.2006); Fifth Column v. Vill. of Valley View, 100 F.Supp.2d 493, 507 (N.D.Ohio 1998); S. Entm’t Co. of Florida v. City of Boynton Beach, 736 F.Supp. 1094, 1101-02 (S.D.Fla.1990); City of Ann Arbor v. Danish News Co., 139 Mich.App. 218, 361 N.W.2d 772, 774-76 (1984).


10. The City argues that Six Star’s claim against Chapter 83 is moot because that ordinance has been repealed. However, Six Star seeks damages for the period in which Chapter 83 prevented it from operating the Outer Limits Gentleman’s Club as a theater, and so its claim is not moot. See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 608-09, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).


11. The City points out that, in 2010, the only establishments that held theater licenses under Chapter 83 were “traditional, commonly-defined theaters featuring fixed seating facing a permanent stage offering dramatic performances, plays and the like.” See Pl’s Resp. to City’s PFOF ¶ 6, ECF No. 72. However, that fact is irrelevant, since there was nothing in Chapter 83 that required an establishment to conform to this description in order to obtain a theater license.


12. The City also points out that, at the time Six Star applied for a theater license, Robert Smith was already operating his tavern at the Old World Third location. However, the City does not explain why that mattered. See City’s Response Br. at 48-49, ECF No. 55. Apparently, Six Star had an agreement with Smith under which Smith would vacate the premises if Six Star had been able to obtain a license to operate as either a tavern or a theater. Nothing in Chapter 83 suggests that the City needed to know this in order to process Six Star’s application for a theater license.

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