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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JANE DOE I, JANE DOE II, and CIVIL ACTION NO. 16-14876
JANE DOE III

VERSUS JUDGE BARBIER

JUANA MARINE-LOMBARD, in her

official capacity as Commissioner, MAGISTRATE JUDGE ROBY
Louisiana Office of Alcohol and Tobacco
Control

PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF

MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs Jane Doe I, Jane Doe II, and Jane Doe III (collectively, Plaintiffs)

respectfully submit this Reply Memorandum in support of their Motion for Preliminary

Injunction (Rec. Doc. 16), in order to respond to the arguments set forth in the Oppositions (Rec.

Docs. 47 & 49) filed by Defendant Juana Marine-Lombard, Commissioner of the Louisiana

Office of Alcohol and Tobacco Control (Defendant), and Intervenor Jeff Landry, Louisiana

Attorney General (Intervenor, and together with Defendant, collectively referred to as the

State).1

1
Although the Governor and Attorney General are waging turf wars with each other ranging from
restrooms to environmental litigation in other venues, they seem to be getting along just fine here, having
agreed to split up the issues in their respective Oppositions, thereby submitting a total of 75 pages of
briefing in opposition to Plaintiffs Motion for Preliminary Injunction (plus nearly 1,000 pages of
exhibits), despite the 40-page limit imposed by the Court upon the Defendant (Rec. Doc. 15). Still, it is
puzzling why the Attorney General is not representing the Defendant in this case and instead intervened
as a party (after the State hired private counsel for Ms. Marine-Lombard), not to mention why the
Attorney General recently filed a motion seeking to enroll yet another lawyer from the private sector
from Tennesseeas additional counsel of record (Rec. Doc. 46). Taxpaying citizens of Louisiana might
rightly ask: How many lawyers paid by the government does it take to attempt to defend an
unconstitutional law? The most likely answer was given long ago by Thomas Mann: Everything is
politics.

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I. Introduction

In response to Plaintiffs motion, the State has submitted a gratuitously graphic, morally

contemptuous, ill-contrived and conclusory narrative regarding the purported secondary effects

associated with erotic dancing (none of which has anything to do with the States decision to

single out 18-20 year old female dancers for special treatment, and all of which fundamentally

undermines the States argument that Act No. 395 is constitutional because Plaintiffs can

continue dancing in alcohol-licensed clubs by wearing slightly more covering than their 21-

and-over colleagues). Furthermore, all of this newly minted evidence and high-and-mighty

concern put forward by the States litigation counsel is in stark juxtaposition to the perfunctory

legislative debate proceeding enactment of Act No. 395 (during which the two chambers of the

Louisiana Legislature devoted only thirty minutes of floor time to the bill, and then spent most of

that time making jokes about the proposed law, including multiple legislators placing dollar

bills on the podiumpresumably simulating strip club behaviorwhile the only legislator to

speak out about the inherent legal deficiencies with the proposed act delivered his remarks).2

2
As Plaintiffs discussed in their opening memorandum, these legislative antics rightly drew various
rebukes and complaints from female legislators about the Louisiana Legislatures treatment of women. In
a recent turn of events that not even Shakespeare himself could make up, just two days ago male
legislators once again found themselves in hot water over a bikini birthday cake that was brought to a
joint budget caucus of senators and state representatives. The cake, in the shape of a womens body from
neck to waist, with a pink bikini and an oddly-specific bikini-line purple unicorn tattoo, was apparently in
celebration of Representative Mark Abrahams birthday, and was accompanied by a sign reading:
Happy Birthday / Mark Abraham / He Likes His Cake And Eats It Too!!!! See Mark Ballard, Bikini
Birthday Cake at State Capital Stirs Anger and Disgust, Calls of Misogyny, The Advocate (Nov. 18,
2016), attached hereto as Exhibit 1, also available at http://www.theadvocate.com/
baton_rouge/news/politics/article_b8bed38a-add5-11e6-bb7d-af2f87ad99d8.html. According to several
female legislators, a second cake in the shape of a vagina temporarily decorated one of the legislative
meeting rooms as well. These latest antics, not to mention the accompanying double entendre, are
consistent with legislators inappropriate and paternalistic statements about women during the debate on
Act No. 395; and they negate the proffered moral indignation now being preached by the States litigation
counsel in lieu of persuasive legal arguments.

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At the outset, however, Plaintiffs must begin by highlighting an obvious point that the

State is trying desperately to obscurewhile Plaintiffs have detailed various constitutional

injuries that they will suffer if Act No. 395 is allowed to be enforced (and it is important to

remember that these constitutional injuries are themselves irreparable harm, separate and apart

from the economic harm that Plaintiffs are also suffering),3 the State cannot identify any harm

associated with the issuance of a preliminary injunction in this case, beyond delaying the States

ability to impose those constitutional violations on Plaintiffs and other similarly situated adults.4

[A] preliminary injunction only has the effect of maintaining the positions of the parties

until the trial can be held; the order neither replaces the trial nor represents an adjudication on the

merits. 11A Wright, Miller & Kane, Fed. Practice & Procedure 2949 (3d ed. 2013). This

Court recognized as much when it issued its Temporary Restraining Order in this case, noting

that there is minimal, if any, harm to the Defendant from a temporary stay of enforcement of

Act No. 395.5 The same holds true today, and Plaintiffs respectfully suggest that the Court

should keep in mind this important threshold balancing of potential harms as it considers the

parties competing arguments regarding the other preliminary injunction factors.

3
In response to Defendants diversionary argument that Plaintiffs are merely relying on their unverified
complaint, Plaintiffs are submitting with this reply memorandum declarations that track the allegations
of the complaint in which they declare under penalty of perjury that the statements are true and correct.
See Exhibits 2, 3, and 4 attached hereto.
4
Intervenors closing effort to give his position the apparent imprimatur of the Supreme Court by quoting
a snippet from Maryland v. King, 133 S. Ct. 1 (2012), is misplaced. See Rec. Doc. 49, p. 26. In King, the
Supreme Court was not evaluating a request for a preliminary injunction, but rather the State of
Marylands request for a stay of a questionable state court decision striking down a law that allowed the
state to collect DNA from individuals charged but not convicted of certain crimes. The Supreme Court
granted the stay because it concluded that it was likely to grant certiorari and, in fact, the Supreme Court
did eventually grant certiorari. See Maryland v. King, 133 S. Ct. 594 (2013). Moreover, King dealt with
the states ability to investigat[e] unsolved crimes, and remove violent offenders from the general
population. King, 133 S. Ct. at 2. Plaintiffs challenge to Act No. 395 does not implicate similar
concerns for the State of Louisiana because it does not challenge any portion of the States criminal code
nor the States ability to investigate crime or target violent individuals.
5
Rec. Doc. 10.

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II. The State Relies on Incorrect Constitutional and Evidentiary Standards regarding
Plaintiffs First Amendment Challenge to Act No. 395

a. Act No. 395 Clearly Implicates the First Amendment

The Court should reject any suggestion by the State that Act No. 395 is not subject to

constitutional scrutiny because it merely amended two statutes that regulate alcohol licensing.

Even if Act No. 395 is properly characterized as an alcohol regulation (which is a stretch

because the alcohol licensing statutes themselves already existed and Act No. 395 simply added

new age- and gender-based restrictions on the protected expression of erotic dancing to the

existing statutes), the Fifth Circuit is not alone in requiring alcohol regulations affecting erotic

dancing to pass constitutional muster: the Third, Fourth, Sixth, Seventh, and Eleventh Circuits

have concluded that the [U.S. Supreme] Courts citation to American Mini Theatres6 and Barnes7

requires that alcohol regulations of [sexually oriented businesses] be analyzed in light of the First

Amendment tests contained therein. IllusionsDallas Private Club, Inc. v. Steen, 482 F.3d

299, 305-06 (5th Cir. 2007). In so holding, the Fifth Circuit rejected the contention that alcohol

regulations do[] not affect the rights of the dancers to engage in such expression or the rights of

the Clubs to offer it . . . because there is no constitutional right to drink while watching nude

dancing. Id. Rather, the Fifth Circuit determined that alcohol-based regulations affecting

erotic dancing implicate the First Amendment, and must be tested under the strictures of First

Amendment jurisprudence. Id. at 307.

b. Act No. 395 is Subject to Strict Scrutiny and is Presumptively Invalid

As Plaintiffs explained in their opening memorandum, while the Legislature gave lip

service to the issue of human trafficking, it did not conduct, review, or consider any studies or

6
Young v. Am. Mini Theatres, Inc., 427 U.S. 50 (1976).
7
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).

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other evidence linking human trafficking and erotic dancing generally, let alone any evidence

linking human trafficking to erotic dancing by 18-20 year old women. Rather, the commentary

by various legislators during the legislative debate leaves no doubt that Act No. 395 was actually

intended to prohibit a class of adults (18-20 year old women) from making their own decisions

about how to express themselves. In short, the Louisiana Legislature wanted to prohibit young

adult women from engaging in erotic dancing because theres another way of living and they

would rather make them go to church or something, and because legislators couldnt imagine

their own daughters or sisters being erotic dancers.8 The invocation of the scourge of human

trafficking was simply a means to their end, and such a shortcut is devoid of the most

rudimentary constitutional safeguards.

The Fifth Circuit has defined the scope of the inquiry into the legislative purpose behind

a law challenged under the First Amendment:

[U]nlike our review under a standard of rationality, we will not hypothesize such
an objective or accept a naked assertion. Rather, we intrude into the regulatory
decision process to the extent that we insist upon objective evidence of purpose
a study or findings. Insisting upon findings reduces the risk that a purported
effort to regulate effect is a mask for regulation of content. Accordingly, the
district court erred in concluding that when the government attempts to justify a
ban on public nudity as fulfilling a substantial government interest based on the
secondary effects doctrine, as applied to nude dancing, it does not need to
introduce any evidence. To insist on less is to reduce the First Amendment to a
charade.

J & B Entmt, Inc. v. City of Jackson, 152 F.3d 362, 372-73 (5th Cir. 1988) (internal citations

omitted) (emphasis added).

Now that Act No. 395 has been challenged in a court of law and Plaintiffs have called

into serious question the human trafficking supposition, the State argues that the Act was

8
See Rec. Doc. 16-1, p. 17. Plaintiffs do not question that religious worship is important to many people,
but the encouragement of church-going practice is hardly a basis upon which to restrict Plaintiffs ability
to earn a livelihood and violate their constitutional freedoms.

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actually designed to address multiple problem[s] allegedly associated with erotic dancing at

bars or clubs licensed to sell alcohol, including the danger of exposure to drugs, prostitution,

human trafficking, [and] other crimes involving lewd conduct.9 To be clear, in evaluating

whether Plaintiffs have demonstrated a likelihood of success of showing that Act No. 395

violates the U.S. and Louisiana Constitutions (and, therefore, whether a preliminary injunction

should be issued), the State asks this Court to consider a variety of evidence that the Louisiana

Legislature never itself considered when Act No. 395 was enacted.10 Under applicable Fifth

Circuit law, that approach is inappropriate. While the Court need not look only to a legislative

record or statutory preamble to determine the purpose of Act No. 395 (and it is worth noting that

Act No. 395 contains no such preamble, nor findings of any sort), the fact remains that a

statutes predominant purpose must be determined with reference to events contemporaneous

with the enactment. Illusions, 482 F.3d at 310 (emphasis added); see also N.W. Enterprises v.

City of Houston, 352 F.3d 162, 174-77 (5th Cir. 2003) (relying on the legislative record and the

statutes preamble, which contained express findings of secondary effects, to conclude that the

challenged statute was content-neutral).

Compared with the other regulations discussed in the cases the State relies upon, Act No.

395 is notable and stands alone in the complete lack of any contemporaneous evidence

supporting the purported human trafficking justification for the law.11 Rather, the events

9
Rec. Doc. 47, p. 15.
10
Plaintiffs will discuss the States offer of this new evidence below in connection with the second
prong of the OBrien test, but in determining the true purpose of the law in order to select a level of
scrutiny, the key point here is that none of these materials were discussed by the Legislature at the time of
enactment. However, the States mantra is tellingthe State apparently hopes its incessant reference to
provocative terms such as prostitution, drugs, and lewd conduct will suffice in lieu of actual
evidence.
11
Defendant points to Representative Johnsons offhand comment that in a prior job he carted a wagon
load of studies around the State, see Rec. Doc. 47, p. 21, but simply saying that a wagon load of

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contemporaneous with the enactment of Act No. 395 leave no doubt that the true purpose of Act

No. 395 was the suppression of protected expression (i.e., to prohibit 18-20 year old women

from topless dancing), and the Court should be suspect of the States attempt to now change its

tune and contend that it had a variety of different, unstated purposes at the time of enactment.

For these reasons, Act No. 395 is subject to strict scrutiny, and as set forth in Plaintiffs opening

memorandum, it fails to pass constitutional muster under that exacting degree of scrutiny.12

c. Even Under Intermediate Scrutiny, Act No. 395 is Unconstitutional

Even if the Court concludes that Act No. 395 is content-neutral and subject to only

intermediate scrutiny under the First Amendment, the most that can be said is that Act No. 395

was intended to combat human traffickingnot to address the other ills the State now seeks to

link to erotic dancing more generally. When Act No. 395 was introduced in the Louisiana

Legislature, its author, Senator Ronnie Johns, clearly stated its purported purpose: What this

piece of legislation is is strictly an anti-human trafficking bill.13 Defendant recognizes as much

in her opposition: The Act was one of two bills proposed by Senator Johns concerning human

trafficking.14 Under the intermediate scrutiny framework, however, the law still fails to pass

constitutional muster.

Rather than a straight application of the OBrien factors, the State curiously asks the

Court to apply a hybrid test used in the zoning context. But here, of course, Act No. 395 is not

a zoning or distance regulation of sexually oriented businesses, but rather simply adds age- and

unspecified studies about generic secondary effects existed at one time does not make it so, and
certainly does not render Act No. 395 constitutional.
12
The State tacitly acknowledges the unconstitutionality of Act No. 395 by admitting that the Act could
incidentally affect some protected speech, Rec. Doc. 47, p. 25, and that a loss of First Amendment
right[s] for even a small period of time constitutes irreparable injury, Rec. Doc. 49, p. 25 n.5.
13
Ex. B-1 to Plaintiffs Motion for Preliminary Injunction, at 00:21 (Senator Johns) (emphasis added).
14
Rec. Doc. 47, p. 17-18 (noting that the companion bill amended the human trafficking statute).

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gender-based restrictions on erotic dancers to two existing statutes. Thus, the Court should apply

the OBrien factors as set forth in Plaintiffs opening memorandum, not the hybrid approach

incorrectly advocated by the State. Nevertheless, even in the pure zoning context, the Fifth

Circuit has held that zoning restrictions cannot be designed as a subterfuge for banning . . .

protected speech. N.W. Enterprises, 352 F.3d at 181.

The problem with the States incongruous argument is two-fold: (a) the State cannot

satisfy its evidentiary burden under Alameda Books and its progeny; and (b) even if the Court

considers all of the post-enactment offerings upon which the State now hopes it can rely, Act No.

395 nonetheless cannot pass the OBrien test because the Act does not further a substantial

government interest. Each of these defects will be discussed in turn.

i. The State Cannot Meet the Alameda Books Evidentiary Burden

In evaluating the second prong of the OBrien testnamely, whether the State seeks to

regulate a real harm, and whether the restrictions in fact further that interestthe Court must

employ the evidentiary standard set forth in City of Los Angeles v. Alameda Books, Inc., 535 U.S.

425 (2002). The Alameda Books standard provides that a municipality may rely on any

evidence that is reasonably believed to be relevant for demonstrating a connection between

speech and a substantial, independent government interest. Id. at 426 (emphasis added). As

interpreted by the Fifth Circuit, Alameda Books imposes both a timing requirement (i.e.,

requiring at least some contemporaneous consideration of evidence by the legislature) and a

substantive requirement (i.e., requiring that the evidence must fairly support [the legislatures]

rationale, because the legislature cannot get away with shoddy data or reasoning). See J & B

Entmt, Inc. v. City of Jackson, Miss., 152 F.3d 362, 372 (5th Cir. 1998) (noting that the court

may uphold a challenged law where the government adduced sufficient evidence at trial to

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establish that prior to enacting the ordinance, it had reviewed sufficient evidence to develop a

reasonable belief that enacting the zoning ordinance would ameliorate secondary effects

associated with adult entertainment) (emphasis added).

The Fifth Circuit has made clear that some evidence is required to justify a substantial

governmental interest, and that evidence must be considered at the time of enactment, not

merely put forward during subsequent litigation. Illusions, 482 F.3d at 312 (holding that the

government has not justified its substantial governmental interest where there [was] no

evidence of a substantial governmental interest in the form of preenactment legislative findings

or the like on which the legislature relied, but rather simply a post-enactment assertion and the

text and context of [the statute]); see also SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274

(5th Cir. 1988) (holding that the government must prove that there was evidence before it from

which [it] was entitled to reach its conclusion regarding secondary effects). Moreover, the Fifth

Circuit has held that a substantial government interest cannot be justified by post-enactment

reliance upon judicial opinions. Illusions, 482 F.3d at 314-15.

Simply put, the Louisiana Legislature did not even mention that it considered any of the

materials or decisional law that the States litigation counsel now cites. Moreover, the

Legislature certainly did not consider evidence suggesting that requiring erotic dancers who are

18-20 years old to wear slightly more covering15 than their colleagues aged 21 and older

colleagues who literally share a stage with them in erotic dance clubswill somehow combat

any alleged secondary effects upon which the State now attempts to rely. Indeed, common sense

rejects the States tortured theory. In short, consistent with settled law, the Court should entirely

disregard the post-enactment justifications that the State has crafted and now seeks to introduce

15
Rec. Doc. 47, p. 1.

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in this case, and instead find that the Louisiana Legislature absolutely failed to meet its

evidentiary burden under Alameda Books and its progeny within this Circuit.

ii. Even If the States Extraneous, Post-Enactment Evidence is Considered,

Act No. 395 Nonetheless Fails to Pass the OBrien Test

Presupposing the Louisiana Legislature actually considered the evidence discussed in

the States opposition briefs (which it did not), or if the Court allows the State to rely upon such

loose post-enactment references now, Act No. 395 is nonetheless unconstitutional because the

law is not tailored to its purported purpose. Specifically, the State cannot satisfy the second

prong of OBrien, that is, the State cannot establish that Act No. 395 furthers the interests

advanced by the State. See Fantasy Ranch Inc. v. City of Arlington, Tex., 459 F.3d 546, 558-59

(5th Cir. 2006).16

First, Defendant devotes fifteen pages of her opposition brief to an extraneous discussion

of New Orleans City Ordinance 31,035 and the few anecdotal materials considered by the New

Orleans City Council in connection with that ordinance, despite the facts that (i) this municipal

ordinance has not been challenged by Plaintiffs in this lawsuit and (ii) the Louisiana Legislature

did not rely upon any of these materials in enacting Act No. 395. Of course, just because the

City of New Orleans passed a related (though quite different from a textual perspective)

ordinance prior to the States passage of Act No. 395 does not insulate Act No. 395 from

Plaintiffs constitutional challenges (and, in any event, the New Orleans City Ordinance may

well be subject to future constitutional scrutiny).

16
Plaintiffs decision not to repeat each and every one of their claims and arguments in this reply
memorandum should not be interpreted as a waiver or abandonment of any of those claims or arguments.
Rather, Plaintiffs are simply responding to the most egregious aspects of the States opposition
arguments, and otherwise they rely upon their Complaint and original memorandum.

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Second, the State also relies on materials associated with ATCs Operation Trick or

Treat.17 These reports and materialssome of which actually pre-date Operation Trick or Treat

by several yearsare pointedly graphic and gratuitous in nature, and have little, if any, relevance

to the merits of Plaintiffs constitutional concerns. These reports were not considered by the

Louisiana Legislature in enacting Act No. 395, and they contain absolutely no discussion

regarding human trafficking or the ages of any erotic dancers. Apparently, the State seeks to

offer these reports to try to tarnish sexually oriented businesses, which is somewhat of an irony

given the recent actions of certain legislators. In any event, these ATC reports do not establish

that clubs offering erotic dancing cause an increase in secondary effects, because no onenot

Defendant, not Intervenor, not the Louisiana Legislaturehas compared or considered whether

the administrative infractions revealed by Operation Trick or Treat (none of which relate to

human trafficking or refer to the age of any dancers) are unique to clubs with erotic dancing, or

are in line with regulatory errors that occur in other establishments that serve alcohol. And clubs

that were cited during Operation Trick or Treat were subject to the legal ramifications of such

misconduct. Operation Trick or Treat simply reveals that if ATC and the Louisiana State Police

want to combat perceived negative secondary effects associated with establishments that serve

alcohol, all they need to do is enforce the laws already on the books. Encroaching on Plaintiffs

protected expression, a cornerstone under the aegis of the U.S. and Louisiana Constitutions, does

nothing to further the States purported goals.

Third, the State relies upon news reports concerning the death of Jasilas Wright and a

passing reference by Representative Carter about whether it is appropriate to call Mr. Littleton

(now a defendant charged with her death) a boyfriend or pimp. In denying Defendants

17
See Exhibits M and O to Defendants Opposition (Rec. Docs. 47-13 & 47-15), sought to be filed under
seal by the State (Rec. Doc. 48).

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request to subpoena the police report regarding Ms. Wrights death for use in this case,

Magistrate Judge Roby expressly rejected Defendants attempt to tie Ms. Wrights death to

Plaintiffs constitutional challenge to Act No. 395, and specifically found that the evidence

Defendant sought was irrelevant to this matter.18 Indeed, if Defendants logic about the

possible relevancy of Ms. Wrights death is to be accepted, then it would indicate that the State

could, for example, prohibit young adult women from working in fast food restaurants (based on

the recent killing of Taylor Friloux, a 21-year-old manager at Raising Canes restaurant in

Kenner), prohibit young adult women from teaching in schools (because some teachers have

been killed in school shootings), or perhaps even that the State could prohibit young adult

women from working anywhere in the French Quarter after dark (because some people think that

neighborhood is dangerous at night). It is also worth noting that the incendiary examples

Defendant cites trying to support of Act No. 395the deaths of Jasilas Wright and Jaren

Lockhartactually undermine the States argument regarding the Acts age-based restriction and

reveal that the 21-year-old cut-off is completely arbitrary. While Ms. Wright was 19 at the time

of her death, Ms. Lockhart was 22.19 In short, people of all ages are all too often victims of

crime, and the tragic deaths of Jasilas Wright and Jaren Lockhart cannot justify the States

attempt to restrict Plaintiffs constitutional rights.

Fourth, the State alludes to its description of scientific evidence that adults under 21 have

lesser developed brains than those over the age of 21.20 Not only did the Legislature not consider

such evidence, but this rationale is wholly inappropriate to defend the constitutionality of a state

18
Rec. Doc. 45, p. 9.
19
See Paul Purpura, Jaren Lockhart Knew the Couple Accused in Her Death and Dismemberment, The
New Orleans Times-Picayune (Oct. 17, 2014), attached hereto as Exhibit 5, also available at
http://www.nola.com/crime/index.ssf/2014/10/jaren_lockhart_knew_the_couple.html.
20
Rec. Doc. 47, p. 15.

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law. If allowed, the State could prevent any other group of adults it identifies as having lesser

developed brains from engaging in literally any activity without recourse. An adults

constitutional rights are not premised on how developed her brain is (or is not). The State

cannot sidestep the reality that in the State of Louisiana an individual is an adult for legal

purposes at the age of eighteen, and gains a number of important rights and responsibilities upon

achieving that age.21 The State also cannot ignore that Act No. 395 tramples upon Plaintiffs

constitutional rights by restricting their ability to engage in expression that is protected by the

First Amendment to the U.S. Constitution and the corresponding provision of the Louisiana

Constitution.

Fifth, the State attempts to justify Act No. 395 by arguing that 18-20 year old women are

especially vulnerable to the alleged secondary effects of erotic dancing.22 But the State concedes

that the factors contributing to this perceived vulnerability of young women are external to

erotic dancing, such as the risks associated with aging out of the foster care system,

homelessness, and lack of economic opportunities. As the State also concedes, even the Loyola

Study upon which the State so heavily relies makes no connection between age-based restrictions

on erotic dancing and protecting youth who face risks of homelessness, joblessness, and lack of

social support.23 These external risks can be addressed without encroaching upon protected

expression. Indeed, states may pass legislation that provides additional support and resources for

21
See Rec. Doc. 16-1, p. 2, n.1 (discussing La. Civ. Code art. 29 and associated authorities). Notably, the
State glosses over the incongruity of the same public officials allowing 18-20 year olds with lesser
developed brains to vote in state and federal elections.
22
See Rec. Doc. 47, p. 3.
23
See Rec. Doc. 47, p. 11 n.6.

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individuals in the foster care system even after they have reached the age of majority.24 The

risks inherent in aging out of the foster care system exist whether or not an individual engages in

erotic dancing, and can be best addressed by providing those individuals with stable housing and

job and educational opportunitiesnot by eliminating lawful, high-paying jobs with flexible

hours, as does Act No. 395.25

Sixth, in response to Dr. Lutnicks declaration submitted by Plaintiffs in support of their

Motion for Preliminary Injunction, Defendant has submitted a competing expert report by Dr.

McCleary, in which he attempts to discredit Dr. Lutnicks opinions regarding the lack of

evidence linking exotic dance clubs and negative secondary effects. However, at this stage of

the proceedings, the Court need not resolve this battle of the experts. See, e.g., Dogloo, Inc. v.

Doskocil Mfg. Co., Inc., 893 F. Supp. 911, 916 (C.D. Cal. 1995) (On a preliminary injunction

motion, the Court need not reconcile a battle of the experts over the accuracy of the Mantis

study. Rather, the Court need only determine if [plaintiff] has a fair chance of proving that its

survey evidence is accurate and probative. [Plaintiff] has provided enough evidence for purposes

of this motion to support the validity of its survey.); see also Sierra Club v. U.S. Army Corps of

Engineers, 399 F. Supp. 2d 1335, 1347 (M.D. Fla. 2005) (noting that, in issuing a preliminary

injunction, as opposed to when reaching a result on the merits . . . the Court need not adopt the

opinions of one partys set of experts over another).

24
This was done recently, for example, in California. See Youth Law Center, Fostering Connections to
Success, attached hereto as Exhibit 6, also available at http://www.ylc.org/our-work/action-
litigation/aging-outtransition/fostering-connections-ab-12/.
25
The State also relies on a declaration from Ashley Carnes (see Exhibit P to Defendants Opposition
(Rec. Doc. 47-16)), which is replete with rank speculation about other dancers generally (most of which is
not age-specific), speculation that in many cases is contradicted by the Plaintiffs own declarations. This
only goes to show the anecdotal nature of the States post-enactment evidence.

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To be clear, the State will ultimately bear[] the burden of providing evidence that

supports a link between the [regulation in question] and erotic dancing and negative secondary

effects. Illusions, 482 F.3d at 313. At this stage, Plaintiffs must simply demonstrate a

likelihood that the State will not be able to satisfy that burden, and they have done so with the

support of Dr. Lutnicks opinions. Even considering the States post-enactment contentions,

none of these materials provides a link between prohibiting 18-20 year olds from engaging in

erotic dancing in clubs that serve alcohol and reducing human trafficking, drug crimes, or

prostitution. In fact, the States argument suffers from a fundamental contradiction. The State

points to the above categories of evidence that purport to link erotic dancing in alcohol-

licensed clubs to various secondary effects, but then in the same breath argues that Act No. 395

is constitutional because 18-20 year old women can still dance in alcohol-licensed clubs if they

simply wear slightly more covering while dancing.26 Of course, this argument ignores the fact

that the First Amendment protects topless dancing from clothing. N.W. Enterprises, 352 F.3d

at 189. But more importantly, the State never explains how Act No. 395 can further the States

purported concerns about human trafficking and other crimes supposedly associated with erotic

dancing in alcohol-licensed clubs if the Act allows 18-20 year old women to continue dancing in

alcohol-licensed clubs alongside adults aged 21 and older who are not subject to such a clothing

restriction. In the absence of such evidence indicating that Act No. 395 furthers the States

purported interests, Plaintiffs are likely to succeed in showing that Act No. 395 fails to satisfy the

second prong of OBrien and, consequently, violates the First Amendment to the U.S.

Constitution and Article I, 7 of the Louisiana Constitution.

26
Rec. Doc. 47, p. 1.

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III. Intervenor Incorrectly Applies the Vagueness and Overbreadth Doctrines

Intervenor either misunderstands or simply mischaracterizes the nature of Plaintiffs

challenges to Act No. 395 on the basis of its unconstitutional overbreadth and vagueness.

Intervenor goes so far as to suggest that Plaintiffs (or their counsel) must not be of ordinary

intelligence if they cannot read his mind to surmise that he interprets the phrase breasts or

buttocks are exposed to view to not apply if a dancer is wearing a regular bikini.27 But even

the case from four decades ago upon which Intervenor relies to suggest Act No. 395 is not

vaguefrom the Virginia Supreme Court, not the U.S. Supreme Courtcentered on a law with

far more exacting language than Act No. 395. See Wayside Rest., Inc. v. Virginia Beach, 208

S.E.2d 51, 52 (Va. 1974) (As used in this Ordinance state of nudity means a state of undress

so as to expose the human male or female genitals, pubic area or buttocks with less than a fully

opaque covering, or the showing of the female breast with less than a fully opaque covering of

any portion thereof below the top of the nipple.).

By contrast, and as discussed in Plaintiffs opening memorandum, the phrase breasts or

buttocks are exposed to view is not precise enough to pass constitutional muster. As is obvious

from a plain reading of the statute, Intervenors bikini requirement is nowhere in the statutes

language, and reasonable persons (of any sort of intelligence) could disagree as to the meaning of

Act No. 395s implied clothing requirement. Indeed, Act No. 395 begs many questions

regarding its parameters. If 18-20 year old woman engaging in erotic dancing wear pasties

covering their nipples and G-string bikinis, are they in compliance with the law? How much of

27
Rec. Doc. 49, p. 7. Setting aside the unfounded interpretive leap Intervenor makes from the opaque
phrase breasts or buttocks are exposed to view to a requirement of wearing a regular bikini,
Intervenor makes no effort to clarify what he means by a regular bikiniyet another convenient
oversight, considering such bathing suits are available in many varieties, offering various levels of
coverage of the body.

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the female breast need be covered by Intervenors mythical regular bikini to comply with the

law? Is Act No. 395 violated when a dancer wears very short shorts that reveal a portion of the

buttocks? The fact that the text of the law does not answer such questions means it is open to

arbitrary and discriminatory application.

Defendants affidavit does nothing to resolve these constitutional deficiencies, and her

purported clarification raises more questions than it answers (the affidavit also seeks to usurp the

Courts responsibility to interpret the law).28 For instance, Defendant states that she interprets

Act No. 395 to exclude venues such as theatres, ballets, or other mainstream performance arts

venues, whose primary purpose are events or productions and not the service of alcohol, and

where the negative secondary effects would be unlikely to occur.29 But what constitutes a

mainstream performance arts venue? By what criteria is a venue characterized as serving a

primary purpose of housing events and not the service of alcohol? In New Orleans alone,

many alcohol-licensed establishments have performance arts spaces for occasional use, but are

primarily in the business of serving alcohol. Will performances in these spaces be subject to

Defendants enforcement of Act No. 395, or are they considered mainstream venues? If the

New Orleans House of Blues (located in the French Quarter) presents a burlesque show,30 will

the venue or performers be cited by Defendant? Arguably, clubs that offer erotic dancing fit

Defendants poorly-defined interpretation of the lawafter all, such clubs are venues where

performance (erotic dancing) takes place, and where the sale of alcohol may be incidental to that

performance. The fact that the very clubs the State purports to regulate may be exempt from

28
See Exhibit X to Defendants Opposition (Rec. Doc. 47-24).
29
Id. 4 (emphasis added).
30
See, e.g., House of Blues Bustout Burlesque, event held May 16, 2015,
http://www.houseofblues.com/neworleans/EventDetail?tmeventid=1B004E8EB6563627&offerid=0.

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enforcement under Defendants subjective interpretation of the law is all this Court needs to

know to determine that the law is impermissibly vague.

Moreover, Defendant does not explain how she determines which venues constitute areas

where negative secondary effects would be unlikely to occur, thus exempting them from her

enforcement. Will Defendants interpretation change over time, as the current language of the

statute would allow? Will future ATC commissioners adopt a different personal

interpretation? The U.S. Constitution requires legislatures to set reasonably clear guidelines

for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory

enforcement. Parker v. Levy, 417 U.S. 733, 752 (1974). Citizens deserve the same fair notice.

The Constitution further prohibits a law that punishes a substantial amount of protected free

speech, judged in relation to the statutes plainly legitimate sweep. Virginia v. Hicks, 539 U.S.

113, 118-19 (2003). In enacting Act No. 395, the Louisiana Legislature chose not to meet any of

these basic constitutional requirements. Because Act No. 395 invites discretionary and arbitrary

enforcement and sweeps up protected free speech, it violates the First and Fourteenth

Amendments to the U.S. Constitution and Article I, 2 of the Louisiana Constitution, and

Plaintiffs are likely to succeed on their vagueness and overbreadth challenges to Act No. 395.

IV. Intervenors Age Discrimination Argument Misstates the Law

Contrary to Intervenors representations, the Louisiana Supreme Court has been very

clear that the State cannot establish that a law that discriminates on the basis of age substantially

furthers a governmental interest when only persons in the targeted age group are affected by

that law. See Manuel v. Louisiana, 95-2190 (La. 3/8/96); 692 So. 2d 320, 342 (recognizing that

prohibiting use of alcohol by any age group would reduce the incidence of intoxicated driving

and alcohol-related accidents in that age group but would not justify the discriminatory

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classification) (emphasis added). Rather, to satisfy intermediate scrutiny under the Louisiana

Constitution in this context, the State must establish that its discriminatory law is substantially

related to the protection of the general welfare of the state. Latour v. State, 00-1176 (La.

1/29/01); 778 So. 2d 557, 557, 566 (relying on unrefuted testimony regarding the enormous

social costs attributable to problem gambling to conclude that raising the minimum age for

purchasing lottery tickets and operating video poker is substantially related to the protection of

the general welfare of this state). In short, the State must have substantial evidence to show that

targeting a specific age group protects the general welfare of the State, and such evidence is

completely lacking in connection with Act No. 395.

At the time of approving Act No. 395, the State considered no evidence related to any

purported connection between erotic dancing and reducing human trafficking. The State made

no showing (nor can it make such a showing) that prohibiting adults under the age of 21 from

engaging in the First Amendment-protected expression of erotic dancing protects the general

welfare of the State. At most, the State argues that disallowing adults under age 21 from such

protected expression might reduce the likelihood that those adults will come in contact with the

States now perceived secondary effects of erotic dancing. As explained above, this

conclusion is highly suspect because the State also claims that 18-20 year olds can still be

employed as erotic dancers provided they wear slightly more covering. But in any event, as

Manuel and Latour establish, the State cannot rely on the fact that its law might benefit persons

who fall within the discriminated group. Rather, to pass constitutional muster, the State must

show that its discriminatory law furthers the protection of the States general welfare. Neither

Intervenor nor Defendant has done so herenor did the Legislature. There is simply no link

between prohibiting 18-20 year olds from engaging in erotic dancing (or under Defendants

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interpretation, requiring those adults to wear slightly more covering than adults aged 21 and

older) and reducing any alleged secondary effects for the general population of the State.

Intervenors reliance on State v. Ferris, 99-2329 (La. 5/16/00), 762 So. 2d 601, is

likewise unavailing. In Ferris, the Louisiana Supreme Court considered whether the State could

impose stricter restrictions on 18-20 year olds for driving under the influence of alcohol, and

explained that that the proper focus was to compare licensed drivers in the eighteen-to-twenty

age group with the group of licensed drivers who were twenty-one and over. The issue thus

framed was whether drawing the line at twenty-one substantially furthered the States significant

interest of promoting highway safety. Id. at 604 (emphasis added). The Court examined

extensive, objective statistical data regarding the crash rate for drivers aged 18-20 who had

consumed alcohol versus those aged 21 and older. The data showed that [a]lcohol-related

traffic fatality rates, based on the percentage of licensed drivers in each age group, were over

twice as high in the disadvantaged group [i.e., 18-20 year olds] as the rates for persons twenty-

one and over, id. at 605, and that eighteen-to-twenty-year-old drivers presented the highest risk

of alcohol-related fatal crashes and injury crashes in Louisiana. Id. at 606. The Louisiana

Supreme Court concluded that the States age-based drinking-and-driving restriction was

substantially related to improving overall highway safety by reducing alcohol-related

accidents. Id. at 607 (emphasis added). Here, the State has not come marginally close to

meeting the intermediate scrutiny test for age-based restrictions under the Louisiana Constitution

and, consequently, Plaintiffs are likely to succeed on the merits of their age discrimination claim.

Accordingly, Plaintiffs are entitled to the issuance of a preliminary injunction.

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V. Intervenors Equal Protection Analysis Should Be Rejected

Intervenor suggests to this Court that Plaintiffs have challenged Act No. 395 as gender-

discriminatory, and thus a violation of the Fourteenth Amendments Equal Protection Clause and

Article I, 3 of the Louisiana Constitution, simply because the Act disproportionately impacts

women.31 That is false. Rather, Plaintiffs rightly note that in addition to the fact that Act No.

395 disproportionately regulates the behavior and protected expression of women, the Louisiana

Legislature made a number of sexist and paternalistic comments about the purpose of the

legislation being to protect young women when enacting the law (not to mention the dollar bill

routine during the debate).32 As Plaintiffs explained in their opening memorandum, such

invidious gender-based discrimination violates the Equal Protection Clause. See Personnel

Admr of Mass. v. Feeney, 442 U.S. 256, 274 (1979); see also Village of Arlington Heights v.

Metro. Hous. Develop. Corp., 429 U.S. 252, 265-67 (1977) (noting that legislative comments are

relevant to whether a discriminatory purpose has been a motivating factor); Miss. Univ. for

Women v. Hogan, 458 U.S. 718, 725 (1982) (Care must be taken in ascertaining whether the

statutory objective itself reflects archaic and stereotypic notions . . . [and] if the statutory

objective is to exclude or protect members of one gender because they are presumed to suffer

from an inherent handicap or to be innately inferior, the objective itself is illegitimate.).

Moreover, although disparate impact is not dispositive, it is relevant to the Courts

inquiry into whether the State has discriminated against a protected classhere, women.

Arlington Heights, 429 U.S. at 265. The Supreme Court has recognized that when a neutral law

has a disparate impact upon a group that has historically been the victim of discrimination, an

unconstitutional purpose may still be at work. Feeney, 442 U.S. at 273. Such is the case with

31
See Rec. Doc. 49, p. 20.
32
See Rec. Doc. 16-1, p. 31-33. Not one legislator mentioned anything about protecting young men.

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Act No. 395. In other words, Intervenor is simply wrong to suggest that disparate impact is

irrelevant to this Courts constitutional inquiry, and he is also wrong to suggest that Feeney

and Arlington Heights did not involve the Equal Protection Clause.

Based on the paternalistic and sexist reasons members of the Louisiana Legislature gave

for enacting Act No. 395 (not to mention its ongoing sexist behavior as reflected by the recent

bikini birthday cake incident),33 as well as the Acts disproportionate impact on women, Act

No. 395 violates the Fourteenth Amendments Equal Protection Clause and Article I, 3 of the

Louisiana Constitution. Hence, Plaintiffs are entitled to a preliminary injunction prohibiting its

enforcement.

VI. Conclusion

In order to grant Plaintiffs Motion for Preliminary Injunction, the Court need only find

that Plaintiffs are likely to succeed on one of their constitutional challenges to Act No. 395. As

set forth in Plaintiffs opening memorandum, and as further discussed above, Plaintiffs are likely

to succeed on multiple claims because Act No. 395 violates numerous constitutional provisions,

not the least of which is the freedom of expression guaranteed to every person in this country.

Based upon these legal authorities and facts, Plaintiffs respectfully request that their motion be

granted and that a preliminary injunction be issued enjoining Defendant from enforcing or

causing any other state actor to enforce Act No. 395 pending a final adjudication of Plaintiffs

claims.

33
See footnote 2, supra.

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Respectfully submitted,

PHELPS DUNBAR LLP

BY: /s/ Harry Rosenberg

Harry Rosenberg (Bar #11465)
Jeremy T. Grabill (Bar #34924)
Lindsay Calhoun (Bar #35070)
Canal Place | 365 Canal Street, Suite 2000
New Orleans, Louisiana 70130-6534
Telephone: 504-566-1311
Telecopier: 504-568-9130
Email: harry.rosenberg@phelps.com
jeremy.grabill@phelps.com
lindsay.calhoun@phelps.com

ATTORNEYS FOR PLAINTIFFS JANE DOE I,

JANE DOE II, AND JANE DOE III

CERTIFICATE OF SERVICE

I do hereby certify that I have on this 20th day of November, 2016, electronically filed

the foregoing with the Clerk of Court using the CM/ECF filing system, which will send a notice

of electronic filing to all counsel of record.

/s/ Harry Rosenberg

Harry Rosenberg

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