Wall Distributors, Inc., a Virginia Corporation, Appellant, v. the City of Newport News, Virginia, an Incorporatedmunicipality; Joseph C. Ritchie, in His Official Capacityas Mayor of Newport News, Virginia; Darrel W. Stephens, Inhis Official Capacity As the Chief of Police for the City Ofnewport News, Virginia, Appellees, 782 F.2d 1165 (4th Cir. 1986)

Wall operates in the City of Newport News a bookstore that concededly "deals in speech material of an explicit sexual nature," including the display of such material by coin-operated movies in enclosed booths. Its operation therefore subjected it to both the criminal and licensing provisions of the ordinance.

Wall attacked the licensing provision on the dual grounds that it directly violated the corporation's first amendment rights by regulating speech in a manner unjustified, vague, and lacking in procedural protections and that its disclosure requirements also violated first amendment privacy rights of its shareholders, employees and agents.⁴ 

Wall attacked the criminal prohibition provision on the basis that it directly impinged on first amendment rights of free speech by proscribing the exhibition of films whose content had not been adjudged to be outside first amendment protection.

Notably, the challenge did not include any due process or equal protection claims based on deprivation of property rights.

The district court granted summary judgment for the City of Newport News, finding the regulation by criminal proscription a constitutionally permissible manner restraint and the licensing requirement not violative of first amendment right in either respect charged. This appeal followed.

II

We first address the constitutionality of the provision making it a criminal offense to exhibit films in closed booths. The City contends that this only imposes a valid restriction on the manner of speech. It is not contended of course that the films in question have been adjudged obscene. That they may be erotic, though not obscene, does not lessen the protection to which their dissemination is entitled. See Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 825 (4th Cir. 1979). There is accordingly no doubt that their dissemination is basically under first amendment protection. See Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1245 (9th Cir. 1982) (evaluating a comparable closed booth regulation). Nor is there any contention that the criminal provision has not even an incidental effect upon the unchallenged basic right, for failure to comply with the regulation would undeniably subject Wall to punishment for exercising in the specific way proscribed the general right to exhibit the films' contents. See id. at 1246.

But this of course does not end the inquiry. For restrictions merely on the time, place, or manner of exercise of free speech rights violate no constitutional protections if sufficiently justified and narrowly enough drawn. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, ----, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984); United States v. O'Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 1678, 20 L. Ed. 2d 672 (1968).

The regulation here is properly analyzed under the time, place, and manner tests, for the regulation does not regulate speech on the basis of content,⁵  but instead, restricts primarily noncommunicative aspects of Wall's right to disseminate the content of the films and thereby imposes only an incidental burden on that right. See Ellwest, 681 F.2d at 1245-46; Hart, 612 F.2d at 828.

The question is therefore narrowly whether the incidental burden imposed by this restraint on the manner of dissemination of protected speech is nevertheless sufficiently intrusive on the basic right that it runs afoul of first amendment protections. Such a manner restriction is valid:

if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest.

O'Brien, 391 U.S. at 377, 88 S. Ct. at 1697.

Applying the O'Brien test, we hold first that the open booth regulation lies within the general constitutional power of the City. The regulation is designed to promote the public welfare by preventing crime and maintaining sanitary conditions in and around arcades, and therefore, falls within the broad general limits of the police power. See Ellwest, 681 F.2d at 1246; Hart, 612 F.2d at 828 & n. 8.

To meet the second element, the requirement that the regulation further an important or substantial government interest, the City advances government interests of reducing crime and maintaining public health and decency standards. The City contends that the open booth requirement is based upon a reasonable legislative determination that its enforcement will prevent masturbation with its related unsanitary conditions and other activities offensive to decency that demonstrably accompany furtive viewings of the materials.

Although Wall assails the lack of evidence of the precise nature of activities and health conditions in the booths before adoption of the open booth regulation,⁶  a court in constitutional review need only conclude that the City has advanced sufficient government interests. The decision to enact such a regulation constitutes a legislative determination that closed booth showings produce side effects that are destructive of public health, decency and order. To have this determination sustained against constitutional attack, a legislature is not bound to create an evidentiary record that would pass muster on plenary judicial review of legislation's necessity and fitness to achieve desired results. Judicial review goes only to whether the legislative determination of justification and fitness is not facially without factual support, hence not arbitrary and capricious. See Hart 612 F.2d at 828 (government interest established by record showing that state legislature reasonably determined on basis of health official's report of extant conditions that "sex supermarket" zoning regulation would prevent destructive effects on neighborhoods); Ellwest, 681 F.2d at 1246-47 (government interest established by record showing legislature's reasonable foresight of deleterious consequences from continued closed booth operation based upon police reports of extant conditions).

As did the court in Ellwest, we conclude that the City here had a reasonable basis for determining that closed booth showings were sufficiently likely to foster a pattern of conduct inimical to public health, decency and order that in those interests they should be foreclosed.⁷ 

The third element of the O'Brien test requires that the government interest not be related to suppression of free expression. Under this element, courts must "eschew altogether the 'guesswork' of speculating about the motive of lawmakers." Hart, 612 F.2d at 829. Instead, courts must look only to the face of the regulation and the identifiable interest advanced to justify the regulation. Id. On its face and under the interests advanced by the City, the open booth regulation is designed to promote public welfare by preventing unsanitary, offensive or dangerous conditions in arcades. Although Wall protests that only "adult" movies are impacted by the regulation, clearly demonstrating that the sole motive for its adoption was that of suppressing erotic materials, so to conclude would involve precisely the type of speculation into legislative motive that we must avoid in assessing this type constitutional challenge to legislation. We therefore decline to look past the facially apparent effect of the regulation and the interest based purpose advanced for its adoption by the City.

The final factor of the O'Brien test requires that the incidental restriction on first amendment interests be no greater than is essential to achieve the interest advanced by the government. The open booth regulation appears to be the least burdensome means of controlling offensive and illegal activity within booths that can be imagined. The regulation in no way limits the time of operation, number of booths, or content of exhibitions. We conclude that the regulation is both narrowly tailored to serve the specific interest advanced by the City and that it leaves open ample channels of communication, and therefore, meets this test. See Clark, 468 U.S. at ----, 104 S. Ct. at 3069.

Having found the criminal offense provision of the ordinance to be a valid manner restraint under Supreme Court precedent, we affirm the portion of the district court's judgment upholding its constitutionality.

III

We next turn to the City's licensing regulation. The provision requires businesses to obtain a license for exhibiting films in enclosed booths.⁸  The application for the license requires substantial disclosures of background information.⁹ 

Licensing provisions are prior restraints on speech if they permit authorities to deny the use of a forum for protected expression in advance of actual expression. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S. Ct. 1239, 1243, 43 L. Ed. 2d 448 (1975). The City's licensing regulation manifestly has this effect, for Wall's failure to obtain the license allows the City to prevent it from exhibiting erotic material, a form of protected expression, in the forum of enclosed booths.

However, the licensing requirement here has the bizarre aspect originally noted that, rather ironically, insures that it, like the criminal provision, is saved from the specific first amendment challenges here advanced. The licensing provision requires a license to carry on activity that is otherwise absolutely proscribed as criminal by the city ordinance. As indicated in Part II, we have concluded that plaintiff has no protectible first amendment right to make the closed booth showings that are absolutely proscribed by the ordinance's criminal provision. If the city can absolutely prohibit the activity without violating first amendment rights, it obviously may impose the lesser restrictions of a licensing requirement, so far as first amendment rights are concerned.¹⁰  That, of course, says nothing about whether, independently of first amendment interests, the licensing requirement might implicate equal protection or due process concerns applicable to business regulations generally; but no such challenges are made here.

IV

Concluding that both the criminal and licensing provisions of the challenged ordinance are valid restrictions only upon the manner of communicating protected speech, we affirm the district court's summary judgment upholding the ordinance against first amendment challenge.

AFFIRMED.