Content-Neutral Age Restrictions and Prior Restraint Safeguards in Adult-Entertainment Ordinances

Introduction

This commentary examines the Eleventh Circuit’s decision in Wacko’s Too, Inc. v. City of Jacksonville, No. 23-10801, 2025 WL ___ (11th Cir. Apr. 23, 2025). The case challenged a Jacksonville ordinance that (1) prohibits erotic dancers under age 21 from performing in strip clubs and bikini bars, and (2) establishes a licensing scheme with a 14-day review period for dancers age 21 or older. Appellants—several Florida entertainment businesses and individual performers—argued that the age restriction is a content-based speech ban subject to strict scrutiny, and that the licensing scheme imposes an unconstitutional prior restraint. The appellant businesses include Wacko’s Too, Sinsations, Passions, Bare Assets, Emperor’s Gentlemen’s Club and Flashdancers; the appellee is the City of Jacksonville (and in some suits, the Duval County Sheriff).

Summary of the Judgment

The Eleventh Circuit affirmed the district court in all respects:

The ordinance’s de facto prohibition on erotic dancers under 21 was treated as a content-neutral “secondary-effects” regulation and survived intermediate scrutiny under United States v. O’Brien.
The licensing scheme for dancers age 21 and over—including a 14-day decision deadline and “deemed granted” clause—satisfied the procedural safeguards against prior restraints set out in Freedman v. Maryland and FW/PBS, Inc. v. City of Dallas. The status quo (continued dancing) was preserved during the sheriff’s review.

Analysis

1. Precedents Cited

City of Renton v. Playtime Theatres (1986): upholding zoning restrictions on adult theaters under “secondary effects” doctrine.
Boos v. Barry (1988): confirming Renton’s content-neutral treatment of facially content-based laws aimed at secondary effects.
Artistic Entertainment, Inc. v. City of Warner Robins (2000): applying intermediate scrutiny to adult-entertainment regulations targeting crime, vice, and trafficking.
Zibtluda, LLC v. Gwinnett County (2005): holding that adult-business regulations with a secondary-effects purpose, though content-based in form, are treated as content-neutral.
Reed v. Town of Gilbert (2015): reaffirming that facially content-based laws trigger strict scrutiny “regardless of benign motive,” but not explicitly overruling Renton/Zibtluda.
United States v. O’Brien (1968): setting intermediate-scrutiny test for content-neutral restrictions on expressive conduct.
Freedman v. Maryland (1965) and FW/PBS, Inc. v. City of Dallas (1990): establishing procedural safeguards (brief decision period, maintenance of status quo, prompt judicial review) to prevent unconstitutional prior restraints.
City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004): clarifying review-time requirements for licensing appeals.

2. Legal Reasoning

• Content-Based vs. Content-Neutral
Although the age restriction applies only to erotic dancing, the court—bound by Zibtluda and Artistic Entertainment—“treat[ed]” it as content-neutral because its declared purpose is to curb secondary effects (not to suppress erotic expression). Under Eleventh Circuit precedent, so long as the regulation’s aim is unrelated to expression’s message, facial content-based laws in the adult-entertainment context are subject to intermediate scrutiny.

• Intermediate Scrutiny (O’Brien Test)
The court applied the four-part O’Brien analysis:

The ordinance is within the city’s power;
It furthers the substantial government interest in preventing sex and human trafficking;
The interest is unrelated to suppressing erotic expression;
The incidental burden on speech is no greater than necessary (it is narrow enough to advance trafficking prevention and not substantially underinclusive as a matter of intermediate scrutiny).

The city’s legislative record—including statistics on Florida’s trafficking rates, empirical studies linking strip clubs to trafficking (often of minors), and council recitals—provided a “reasonable basis” for believing the age restriction advances the substantial interest. Under intermediate scrutiny, underinclusiveness is not fatal (overinclusiveness is the focus).

• Licensing Scheme and Prior Restraint
The ordinance imposes a 14-day review period for dancer‐applicants age 21 or older. During those 14 days—indeed, until the sheriff picks up his pen—applicants may lawfully continue to dance. If the sheriff fails to act in time, the license is deemed granted. If he denies it, the dancer can seek state-court relief, but may not perform while that petition is pending.

Under FW/PBS (plurality) the two required safeguards for a non-censorious licensing regime are:

A specified, reasonable time period for the licensing decision during which the status quo is maintained, and
A prompt judicial review pathway if the license is wrongly denied.

A 14-day deadline is reasonable (the court has upheld 30-45-day periods in prior cases), and preserving the status quo by allowing continued performance during the sheriff’s review satisfies the first safeguard. The ordinance also permits judicial challenge to a denial, satisfying the second.

3. Impact

This decision reaffirms the Eleventh Circuit’s “secondary-effects” framework, permitting municipalities to regulate adult-entertainment businesses by targeting trafficking and crime without triggering strict scrutiny—even when regulations are facially content-based. It clarifies that:

Facial content-based age restrictions in the adult-entertainment context may be treated as content-neutral so long as their express purpose is to combat secondary effects.
Intermediate scrutiny under O’Brien tolerates reasonable underinclusiveness; preventing substantial overbreadth is the paramount tailoring concern.
Licensing schemes with a short decision deadline and clear “continued operation” during review satisfy the two core Freedman/FW-PBS safeguards against prior restraints.

Legislatures elsewhere may rely on these principles when crafting age limits, occupational licensing, or secondary-effects controls over similarly protected (though marginal) expressive conduct.

Complex Concepts Simplified

Content-Based Regulation: A law that singles out speech because of its message or topic. Normally subject to strict scrutiny, requiring a compelling interest and narrow tailoring.
Content-Neutral Regulation: A law whose effect on speech is incidental to a broader, non‐speech purpose (e.g., public safety). Reviewed under intermediate scrutiny, requiring an important interest and reasonable fit.
Secondary Effects Doctrine: In the adult‐entertainment context, laws aimed at crime, trafficking, or property devaluation (not at erotic messages) are treated as content‐neutral even if they distinguish by content.
Intermediate Scrutiny (O’Brien Test): A regulation of expressive conduct must (1) serve an important government interest, (2) advance that interest without targeting speech itself, and (3) be no broader than necessary to achieve the interest.
Prior Restraint: Government action that suppresses speech before it occurs. Licensing schemes impose a prior restraint unless they include prompt decision deadlines, maintenance of the status quo, and quick judicial review (per Freedman and FW/PBS).

Conclusion

Wacko’s Too v. City of Jacksonville strengthens the secondary-effects doctrine in the Eleventh Circuit by holding that a facially content-based age restriction on erotic dancers is properly treated as content-neutral and survives intermediate scrutiny. It also confirms that a licensing scheme with a 14-day decision window and continued‐operation pendency satisfies the minimal procedural safeguards against unconstitutional prior restraints. The ruling will guide municipalities seeking to regulate adult-entertainment establishments in pursuit of legitimate public-safety and anti-trafficking objectives.