Upheld: Content-Neutral Age Restriction and Prior Restraint Safeguards in Adult-Entertainment Licensing

Introduction

In Wacko’s Too, Inc. v. City of Jacksonville, a panel of the Eleventh Circuit addressed whether a local ordinance that (1) effectively prohibits erotic dancers under age 21 from performing in adult-entertainment venues and (2) imposes a 14-day licensing regime on older dancers violates the First Amendment. Multiple Florida strip clubs and individual performers challenged Jacksonville’s ordinance on two principal grounds: that the age cutoff is a content-based speech restriction requiring strict scrutiny, and that the licensing scheme constitutes an unconstitutional prior restraint lacking adequate procedural safeguards. The City of Jacksonville and the Duval County Sheriff’s Office defended the measure as a content-neutral, secondary-effects regulation subject only to intermediate scrutiny and as a properly cabined licensing regime. The Court unanimously affirmed the district court’s dismissal of the First Amendment claims, upholding both the age restriction and the licensing scheme.

Summary of the Judgment

The Eleventh Circuit’s opinion, authored by Judge Newsom, held:

Age Restriction: Although the ordinance facially singles out erotic dancing—a form of expressive conduct—for performers under 21, the Court treated it as a content-neutral secondary-effects regulation (per Renton and our post-Renton precedent) and subjected it to intermediate scrutiny under United States v. O’Brien. The restriction survived because it (a) furthers the substantial government interest of combating sex and human trafficking of minors, (b) is supported by legislative findings and social-science data, and (c) is no more expansive than necessary to achieve its goals.
Licensing Scheme: Jacksonville’s requirement that dancers aged 21+ apply for a Work Identification Card, with a 14-day automatic-grant deadline and the ability to perform while the sheriff reviews the application, satisfies the core procedural safeguards against prior restraints. Under FW/PBS, Inc. v. City of Dallas, a licensing regime must (i) yield a decision within a specified, reasonable time while maintaining the status quo, and (ii) offer prompt judicial review upon denial. The 14-day window is shorter than other validated periods (e.g., 30 and 45 days), and performers may continue working during that period, so no unconstitutional restraint occurs.

Analysis

1. Precedents Cited

City of Renton v. Playtime Theatres (1986) – Established the “secondary-effects” doctrine, permitting content-based adult-business regulations to be treated as content-neutral when aimed at crime, traffic, public health, or other non-speech‐related harms.
Boos v. Barry (1988) – Clarified that a regulation whose purpose is unrelated to content is content-neutral, even if it applies only to particular speech categories.
Zibtluda, LLC v. Gwinnett County (2005) – Eleventh Circuit held that adult-entertainment ordinances targeting secondary effects invoke intermediate scrutiny, treating them “as if” content-neutral.
Artistic Entertainment, Inc. v. City of Warner Robins (2000) – upholding an ordinance limiting adult venues to certain zones as a permitted, content-neutral secondary-effects regulation.
United States v. O’Brien (1968) – Provided the four-part test for intermediate scrutiny of content-neutral expressive‐conduct regulations.
Reed v. Town of Gilbert (2015) – Held that facially content-based laws require strict scrutiny “regardless of benign motive,” but did not expressly overrule the secondary-effects doctrine.
TikTok Inc. v. Garland (2025) – Recent Supreme Court decision affirming that content-neutral laws are upheld if they advance important interests unrelated to speech suppression and do not burden substantially more speech than necessary.
Freedman v. Maryland (1965) – Established three procedural safeguards for censorship schemes: (1) burden on censor, (2) brief advance restraint only, (3) quick judicial decision.
FW/PBS, Inc. v. City of Dallas (1990) – Held that licensing regimes require only the “core” Freedman policy: decision within a reasonable specified time and maintenance of the status quo during that period, plus possible judicial review.
City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004) – Clarified that the promptness requirement for judicial review must be reasonable, but Freedman’s exact timeline for censorship does not apply to licensing regimes.
Redner v. Dean (1994) & Café Erotica of Fla., Inc. v. St. Johns County (2004) – Upheld 45-day and 30-day administrative deadlines as reasonable for adult-business licensing.

2. Legal Reasoning

a. Classification as Content-Neutral

Although the age cutoff applies only to erotic dancing—a content-based distinction—the Court followed Zibtluda and analogous post-Renton decisions in “treating” such adult-business restrictions as content-neutral. That categorization enables application of O’Brien’s intermediate scrutiny rather than strict scrutiny. The City’s extensive “whereas” clauses and legislative record demonstrated a reasonable basis—drawn from Florida trafficking statistics, academic studies, and law-enforcement experience—for believing the under-21 ban would reduce minor exploitation in strip clubs.

b. Intermediate Scrutiny under O’Brien

Substantial government interest: Combatting sex and human trafficking, especially of minors.
Unrelated to suppression of expression: The measure targets secondary effects (trafficking, crime, public order), not eroticism itself.
Reasonable fit / Tailoring: The age restriction is no broader than essential—it forbids only performers under 21 from exotic dancing, rather than all speech or all employees—and many circuits have upheld similar or wider‐scoped regulations.

c. Prior Restraint & Licensing Scheme

Under FW/PBS, a licensing regime must:

Fix a brief, reasonable period for administrative decision while preserving the status quo.
Provide prompt judicial review if the license is denied.

Here, the 14-day automatic-grant deadline is well within—and indeed shorter than—previously upheld periods (30, 45 days). During those 14 days, performers may continue working, so no expression is suspended. Denial triggers an ability to seek state-court injunctive relief, satisfying the prompt review requirement.

3. Impact

This decision reaffirms the vitality of the secondary-effects doctrine in the Eleventh Circuit despite Reed’s admonition that content-based laws are ordinarily subject to strict scrutiny. It clarifies that:

Local governments may continue to regulate adult-entertainment businesses based on secondary effects, including human trafficking.
Age-based performer restrictions, though facially content-based, survive intermediate scrutiny when grounded in combatting crime and exploitation.
Licensing schemes with clear administrative deadlines and status-quo protections avoid unconstitutional prior restraints.

Future cases will likely test whether Reed’s strict-scrutiny rule eventually subsumes secondary-effects jurisprudence, but for now, Zibtluda and its progeny remain binding in this Circuit.

Complex Concepts Simplified

Content-Based vs. Content-Neutral: Content-based laws regulate speech depending on its message (strict scrutiny). Content-neutral ones regulate conduct or place/time (intermediate scrutiny).
Secondary Effects: Harms not inherent in speech (e.g., trafficking, crime, blight) that localities may target without censoring the message.
Strict vs. Intermediate Scrutiny: Strict scrutiny demands a compelling interest and narrow tailoring; intermediate requires only an important interest and reasonable fit.
Prior Restraint: A pre-approval requirement that delays or prevents speech. Licensing can be constitutional if it meets procedural safeguards.
Status Quo Maintenance: While officials decide or license is pending judicial review, speakers must not be silenced—they may continue performing until a final decision.

Conclusion

Wacko’s Too, Inc. v. City of Jacksonville stands as a landmark reaffirmation of the secondary-effects doctrine within the Eleventh Circuit. The Court held that an under-21 ban on erotic dancers is a content-neutral regulation properly subjected to intermediate scrutiny, and that a 14-day licensing deadline with status-quo protection satisfies the narrow core of procedural safeguards against prior restraints. Municipalities seeking to curb adult-venue–related harms may look to this decision as a roadmap for crafting age- and licensing-based speech regulations that withstand First Amendment challenges.