The Volokh Conspiracy

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Free Speech

You Gotta Fight for Your Right to Party, in Wichita

And the Kansas Supreme Court may well be on your side.


City of Wichita v. Trotter, decided today by the Kansas Supreme Court (in a unanimous opinion written by Justice Evelyn Zabel Wilson) struck down as unconstitutionally overbroad W.M.O. [Wichita Municipal Ordinances] 3.06.030., which required licenses "after-hours establishments" that included, among other things, music, trivia, or games:

"'After-hours establishment' means any venue for a series of events or ongoing activity or business, occurring alone or as part of another business, to which the public is invited or allowed which is open anytime between midnight and 6:00 a.m., where individuals gather and is not otherwise licensed for the sale of alcoholic beverages or cereal malt beverages or otherwise licensed by the City of Wichita or state of Kansas for a business at that location. This term shall not include hospitals, hotels, motels or other boarding houses nor is it intended to apply to private homes where specifically invited guests gather. A combination of two or more of the following factors is prima facie evidence that an establishment is an 'after-hours establishment':

"(1) Playing of music either recorded or live;

"(2) Entertainment such as trivia or games;

"(3) Sporting events in person or broadcasted on screens;

"(4) Crowds in excess of 20 people;

"(5) Alcoholic beverages present;

"(6) Food by an unlicensed vendor offered for purchase or as a benefit of paid entry;

"(7) Entry allowed only upon payment of a fee or membership;

"(8) Establishment monitored by security guards;

"(9) Advertisements or notifications on social media or by other means that invite the public to attend or participate in functions or activities located on the premises of such establishment…..

"'Games' mean an activity engaged in for diversion or amusement…..

"'Music' as used in this Chapter shall apply to live musicians, disc jockeys, and all music amplified through speakers or loud enough to be heard outside of the establishment…..

"'Premises' means any place where an after-hours establishment is operated or maintained and includes all hallways, bathrooms, parking areas, and other adjacent portions of the premises, which are under the control of the licensee or which are utilized by the licensee and are accessible to the public during operating hours.

"'Private home' means a building or structure used solely as a private residence where no other commercial or entertainment activities occur or may occur. The term is meant to encompass private citizens gathering with invited guests in their own residentially zoned home.

"'Public' means non-employees and includes invited guests and members of an organization even if that organization is selective in its membership.

"'Trivia' means a quizzing game.

"'Venue' means any interior or exterior area, building, room, lot, or space used as a location for people to gather."

The court concluded the ordinance wasn't limited to commercial activities:

As it is defined, W.M.O. 3.06.030. requires a license for every "venue" (essentially everywhere but a few places specifically excluded by the ordinance) where the "public" (essentially everyone except employees and "specifically invited guests" gathering in "private homes") "is invited or allowed" for a "series of events or ongoing activity or business" that extends to any point between midnight and 6 a.m….

While an individual's specifically invited guests fall outside the ordinance's ambit (but only if they gather solely inside the individual's home and that home is not otherwise disqualified), the same is not true for an invited "organization." With no definition of "organization," the attendees of a monthly book club meeting or a weekly gathering of the Future Farmers of America, for example, would qualify as "the public" under the ordinance's plain language. But we need not resort to such hypothetical applications to divine the ordinance's scope—any regular gatherings involving an "organization" would require licensing under the ordinance if they extend after midnight or begin before 6 a.m….

While much of the ordinance's scope may be sound, its reach into private homes exceeds its constitutionally tolerable grasp. As defined by W.M.O. 3.06.020., a "private home" is "a building or structure used solely as a private residence where no other commercial or entertainment activities occur or may occur" and applies to "private citizens gathering with invited guests in their own residentially zoned home." Stated another way, the ordinance only excludes gatherings in the interior of buildings used solely as residences ("where no other commercial or entertainment activities occur or may occur") that sit in solely residentially zoned areas. Back yard gatherings, gatherings inside residences used partially for commercial purposes—such as those with home offices—and gatherings inside residences that are not solely in residential zones fall within the ordinance's scope.

Indeed, the City's initial response to Trotter's district court motion to dismiss even admitted that "[i]f a person has a home and a nice metal building out back and they host parties every weekend with music and food, they must have a license." We agree: under the ordinance's plain language, such a gathering would require a license if it lasted past midnight. But we cannot agree that the Constitution permits such an intrusion….

Of course, we "'must construe statutes to avoid unreasonable or absurd results.'" But that principle—like other rules of construction—only applies in the presence of ambiguous language. While the meaning of "organization" may be ambiguous, the City's definition of "private homes" is not. We cannot construe around an ordinance's plain language, much as the City invites us to by, for example, reading a "curtilage" limitation into the ordinance's definitions. As written, W.M.O. 3.06.030. unambiguously regulates a wide range of otherwise lawful activity both inside certain private homes (i.e., those either used partially for "commercial or entertainment activities" or those not situated within residentially zoned areas) and around all private homes (i.e., anywhere outside the building or structure that comprises the home). The only exception to this broad regulatory swath goes to "specifically invited guests" inside a residentially zoned private home (used solely as a private home) between the hours of midnight and 6 a.m….

The [Court of Appeals] panel expressed some concern with the zoning aspect of the ordinance, declaring that "[t]he very name 'nonresidential' implies persons would not ordinarily have private homes in such districts" and "[i]t thus follows that neither the district court nor Trotter have shown that there is a realistic danger that W.M.O. 3.06.030.A. would significantly compromise persons living in a nonresidentially zoned area from gathering in accordance with their First Amendment right to assemble." But … the Wichita-Sedgwick County Unified Zoning Code … permit[s] several residential uses in ["Limited Commercial District," "General Commercial District," and "Central Business District"] zones. While we cannot say how many residences fall under such zones, their very existence dispels the panel's assumption that there is no realistic danger of their regulation here.

While clearly the City has a legitimate governmental interest in the regulation of late-night commercial activity, that interest does not justify regulatory intrusion into noncommercial activity vis-à-vis the right of assembly in or around private homes. This is also true of the City's stated purpose in regulating "the operation of all after-hours establishments so as to minimize the negative effects and to preserve the public safety, health and welfare." …

As we have noted, nothing in the plain language of the ordinance limits its application solely to commercial endeavors. And while the City here has not attempted to ban all gatherings between midnight and 6 a.m., the broad sweep of its regulation captures the lion's share of such activity—including much activity within private homes, residentially zoned or not.

"An ordinance or statute is overbroad when it regulates or prohibits constitutionally protected conduct which should be left to the private domain, that is, conduct which the national, state or local government simply does not have the right to control." We have little trouble concluding that this ordinance creates a real and substantial intrusion into the private lives of Wichitans that goes far beyond the scope necessary to further the City's legitimate interests. We do not find W.M.O. 3.06.030.A. overbroad based on unlikely or extreme hypotheticals, but instead based on the ordinance's plain language….

The court also reasoned,

As the City argues, many of the ordinance's aspects suggest that it was intended to regulate mainly late-night commercial activity. Had the ordinance's plain language limited its applicability to commerce alone, this matter might be settled easily because, "it is irrelevant whether the ordinance has an overbroad scope encompassing protected commercial speech of other persons, because the overbreadth doctrine does not apply to commercial speech."

But I think it likely erred in suggesting that, if the ordinance were limited to commercial performances, the overbreadth doctrine wouldn't apply. "Commercial speech" in First Amendment law generally refers to commercial advertising; speech that is commercially distributed or exhibited, such as movies, plays, books, newspapers, or musical performances, isn't treated as "commercial speech," and is protected by the overbreadth doctrine. Whether a content-neutral restriction on commercial gatherings for speech purposes from midnight to 6 am would be a constitutionally permissible time, place, and manner restriction is a separate question.