A new drama series from CBS, “The Defenders,” begins this fall. Billed by CBS as “an irreverent new legal drama about two fiery and charismatic Las Vegas defense attorneys,” the show will star Jerry O’Connell and Jim Belushi. But those actors aren’t who have me interested:

[T]he character that apparently will be responsible for weekly comedic subplots is an attorney who transparently is Clyde DeWitt. In fact, the character is even named “Clyde”, complete with spectacles and Clyde’s trademark hat, and his ongoing story is that of a Vegas porn lawyer who, in the first episode, appears arm-in-arm with a porn star.

“I had no idea that they had plans to write me into this,” said DeWitt, whose character is played by veteran Bruce Jarchow, a fellow Chicago native DeWitt’s age.  “After they already had shot the pilot, a handful of writers came in and sat on my office floor for a couple of hours, quizzing about my practice, so they apparently have plans for me to be a recurring bit of comedic relief in this very intense drama.” [The story courtesy of AVN.]

I know Clyde. Not only do I consider him a mentor and one of the sharpest constitutional litigators I’ve ever met or read, I consider him a friend. And yes, he’s hilarious.

As long as The Defenders doen’t air Sundays at 10 EST, I’ll be watching.

Trade associations and lobbyists for alcohol manufacturers such as MillerCoors, Anheuser-Busch, Heineken and Diageo are brawling with their wholesale distributors over a bill that would strengthen states’ ability to regulate alcohol and make it harder to challenge state alcohol laws in court. The National Beer Wholesalers Association and the Wine & Spirits Wholesalers of America are pushing hard for the legislation, which would solidify their role as industry middlemen and effectively keep regulatory fights at the state level, where they have more influence. But drink manufacturers are scrambling to squelch it, arguing that the bill would create a patchwork of state regulations while potentially allowing states to override federal labeling and food safety laws, among other things.

As Ms. Levine aptly put it: “This is one quarrel that won’t likely be settled over a cold one.”

The case, styled Flava Works, Inc. v. City of Miami, concerns “CocoDorm.com, which operates an internet-based website of the same name. The CocoDorm website transmits images, via webcam, of the residents of 503 Northeast 27th Street, Miami, Florida, over the internet.” The question is whether Flava Works is operating as a business at the residence, even though its

principal place of business, as designated with the Florida Secretary of State, is 2610 North Miami Avenue, where the accounting and financial aspects of the business are conducted. Flava Works holds city and county occupational licenses to operate a video and graphics business at this address. In addition to distributing digital content through the internet, Flava Works distributes physical media, such as videos and magazines, to locations around the world. The computer servers, which house the digital content and provide access to the CocoDorm website, are not located at either the 27th Street residence or the Miami Avenue office.

Flava Works does not disclose the location of the 27th Street residence on its website or in any of its videos or magazines. None of the webcams are located outside of the residence and no external images of the home are broadcast over the internet. Neither customers nor vendors ever physically go to the 27th Street residence.

Can you correctly guess the answer? It’s nothing personal, of course.

Here’ an unpublished opinion issued last Friday by the Fifth Circuit Court of Appeals. A little background: In 1994, El Paso Entertainment (a strip club) sued the City of El Paso, challenging the validity of its zoning ordinances regulating Sexually Oriented Businesses. Before that issue could be resolved, the City and El Paso Entertainment entered into an agreed judgment in 1995, “precluding the City from enforcing any SOB ordinances against either Foxy’s Nightclub or Lamplighter Lounge for as long ‘as the businesses remain[ed] in operation at their current locations by their current owners and operators.’” You can see where this is going.

In 1996, after the 1995 agreed judgement of course, the sole shareholder of the corporations (Mark Diedrich) operating Foxy Nightclub and Lamplighter Lounge sold his interest to another person (Dean Reiber). So the corporations that own and operate the strip clubs did not change; the person owning the shares in those corporations changed.

The district court sided with the City and held that, under the terms of the zoning code, a change of ownership had occurred. The court of appeals, however, held that the phrase “owners and operators” as used in the agreed judgment was ambiguous. It ruled that “this matter is best resolved on remand by a full hearing to allow the parties to present extrinsic evidence and otherwise develop their positions.” New life for the clubs.

It never ends.

The law is being challenged. In this opinion, the Ninth Circuit Court of Appeals held that the plaintiffs were entitled to a preliminary injunction barring enforcement of the sound ordinance. In a word, the ordinance is overbroad.  As the court of appeals recognized, “the amplified speech ordinance is a restriction on the time, place and manner of speech, so under the First Amendment it must be justified without reference to the content of the regulated speech, narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication of the information.” (quotation marks and citations omitted). 

In this case, at least so far, the City of Laguna Beach has failed

to present evidence that the amplified sound ordinance is narrowly tailored to its interests. Likelihood of success on the merits must be based on admissible evidence in the record, rather than surmise or speculation concerning what evidence could be produced at trial. The evidence before the district court did not support the court’s findings, and the district court’s characterization of the City’s briefs as “uncontested evidence” was erroneous. Arguments are not evidence.

The City argued that, because students in California are subject to compulsory attendance, students were a captive audience to the bullhorns. But as the court of appeals noted, “as to Laguna Beach High School, there was no evidence to support a blanket prohibition on the use of a bullhorn within 100 yards of the school 30 minutes before or after the dismissal bell.” Elaborating, the court noted:

The City argues that students in California are subject to compulsory attendance laws and they are therefore “practically helpless to escape . . . interference with [their privacy] . . . regardless of whether [they are] sitting in a classroom during regular hours of instruction, participating in after-school programs or walking to a bus.” But the City presented no evidence as to how after school activities would actually be disrupted by Klein’s proposed speech. Municipalities may protect the privacy of a truly “captive audience,” but only students who must remain in the school for extracurricular activities are even arguably captive, as those walking to a car or a bus may simply continue on their way. See Berger v. City of Seattle, 569 F.3d 1029, 1054-55 (9th Cir. 2009) (en banc); cf. Frisby v. Schultz, 487 U.S. 474, 487 (1988). The same lack of evidence undermines Laguna Beach’s argument concerning student privacy.

You can access oral argument of the appeal here.

The captive-audience doctrine might get some attention by the Supreme Court soon. You can learn why by reading David Hudson’s analysis of Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), in a piece entitled, “Was father ‘captive’ to funeral protesters?” [published at First Amendment Center's Web site]

We granted rehearing to further review whether the Shreveport City Council (the “City Council” or “City”) abused its discretion when it reversed the decision of the Zoning Board of Appeals (the “ZBA”) which granted the special exception use to Roland Toups for his proposed Thrifty Liquor store and the property owners. The City Council decision was driven by the fearful concerns of a vocal opposition before it. We conclude that the denial of the special exception use was not based on objective and valid reasoning and was, therefore, arbitrary and capricious.

This liquor retail establishment’s application for a ’special exception use’ was opposed by nearby churches. Among other arguments voiced by the churches were that “Thrifty Liquor would create an environment of heavier traffic, drunk drivers, and a higher violent crime rate-all of which would put the children attending the nearby church school in peril.”

The court of appeal — correctly, IMHO — concluded that these fears “were not based on fact. The City Council allowed unfettered fear and rank speculation to lead to unnecessary and illegal action.”

The dissent, like all dissents, is worth a look too:

Once the elected representatives vote to regulate and limit the retail package liquor outlets for the alcoholic beverage industry, as they have in this case, by what standard of review may this court decide that the city council’s assessment for the public health, morals, safety and peace of its citizens is improper? In fashioning that standard of review, the judiciary can easily make itself a super-city council for city government unless the proper deference is given.

Had the tables been turned — that is, had City won this appeal by reversal – I wonder if there would have been a dissent? And if so, would that dissent have opened with the same wording?

Mr. Elfman writes:

Here’s how part of the quid pro quo works:

Various hotel doormen ask people in taxi lines where they’re headed. Doormen aren’t necessarily interested in tourists’ sunny day. They’re also trying to find out which tourists want to go to a strip club. When a doorman finds guys looking for naked ladies, they may pull them out of a taxi line and say, “Let me put you in this free limo.”

Cabdrivers hate that, because it takes strip club cash out of their pockets.

Then that limo driver takes his riders to a strip club, gets paid by the club an extra $10 to $100 per rider, then heads back to the doorman and gives him as much as one-fourth to half of that strip club cash.

And you thought your taxi driver was just being friendly. Maybe you should stay in Vegas. Until you figure it out, that is.

Enjoy the weekend.

Paul Braley (“Braley”) has a leasehold interest in property in Forest Park, Georgia, where he operates a retail salvage store. Since 1984, he has displayed merchandise for sale to the public in front of the store in an area where there is a sidewalk and places to park.

In March 2007, the City of Forest Park (“City”) amended its ordinances to establish a new Section 9-8-45, regulating the display of goods and merchandise for sale outside stores; the stated purpose of the ordinance is ‘to prohibit the obstruction of public sidewalks and parking areas by the display of goods and merchandise . . . .’

Then Braley sued the City.  He asserted, among other claims, that the ordinance (1) was both vague and overbroad, (2) ”effected a regulatory taking[,]” and (3) was passed in violation of Georgia’s Zoning Procedures Law. Braley did not move the Georgia Supreme Court. You can read the opinion. Read summaries of other opinions issued by the Georgia Supreme Court yesterday here at SCOG Blog.