Strip Club ‘Has Nothing to Fear but Fear Itself’

     (CN) – A Michigan strip club “misses the net and the rim” by challenging billboard restrictions that the state already muzzled as unconstitutional, the 6th Circuit ruled.
     Adopted in 2011, the laws barred sexually oriented businesses from using any images in signs and off-site billboards, but a federal judge in Detroit enjoined the legislation after two affected businesses filed suit. Conceding defeat, Gov. Rick Snyder and Attorney General Bill Schuette stipulated to a final judgment that permanently enjoined the laws as facially unconstitutional.
     Two months later, however, Platinum Sports dba Allstars filed its own suit, represented by the same lawyer from the prevailing case. The Cincinnati-based 6th Circuit affirmed dismissal of that suit Monday with some harsh words for Platinum Sports.
     “Whether Platinum Sports wished to seize potential defeat from the jaws of established victory or hoped to pile victory (and potential § 1988 fees) on top of victory is not clear,” Judge Jeffrey Sutton wrote for the panel (parentheses in original). “What is clear is that the federal courts have no authority to resolve this ‘dispute.’ The hardest question is which Article III defect to invoke. We choose lack of standing, lack in particular of a cognizable injury, and on that ground affirm the District Court’s dismissal of the case.”
     There is no reason to fear that Michigan will sidestep the court’s earlier final judgment since Gov. Snyder and Attorney General Schuette agreed to it.
     “Anything in this world is possible, we suppose,” Sutton wrote. “But the legal possibility that this governor or this attorney general will enforce these laws in the face of these injunctions is: zero.” (Emphasis in original.)
     The court declined to credit concerns that the legislator who originally sponsored the laws, Sen. Tupac Hunter, “poses a risk” to Platinum Sports.
     “Platinum Sports has nothing to fear but, to borrow a phrase, fear itself, and that assuredly does not amount to a ‘well-founded fear’ of enforcement,” Sutton wrote.
     It is furthermore “irrelevant” to consider whether the club owner has a claim under the equal protection clause. “If anything, an additional theory of invalidity undermines Platinum Sports’s position, as the second theory offers more, as opposed to fewer, reasons not to fear enforcement of the law,” the six-page ruling states.
     This leaves Platinum Sports “in good shape, so far as its authority to erect signs and billboards goes; in bad shape, so far as this lawsuit goes,” Sutton wrote.
     Insisting that “Platinum Sports has no theory of injury,” the judges highlighted how the club cannot show it was injured before the laws were preliminarily enjoined, or how it might sustain any future injury with the injunctions in place.
     “Every effort by Platinum Sports to prove otherwise misses the net and the rim,” Sutton wrote. “It claims that its sign and billboard speech will be ‘chilled’ by the continued appearance of the statutes ‘on the books.’ … Whatever chilling effect the on-the-books existence of these laws might have in the abstract is removed by the concrete injunction preventing their enforcement. Otherwise, every sexually oriented business would have a cognizable injury until it filed and won what would become a parade of lawsuits.”
     Platinum Sports had been represented by Timothy Patrick Murphy of Saint Clair Shores, who did not return a request for comment.
     The Michigan Attorney General’s Office similarly did not return a request for comment.

%d bloggers like this: