Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 1 of 33

Ross C. Anderson (#0109)

Marshall M. Thompson (#14811)
LEWIS HANSEN
The Judge Building
Eight East Broadway, Suite 410
Salt Lake City, Utah 84111
Telephone: (801) 746-6300
Fax: (801) 746-6301
randerson@lewishansen.com
mthompson@lewishansen.com
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

CINEMAPUB, L.L.C., d/b/a BREWVIES

Plaintiff,
v.
SALVADOR D. PETILOS, Director; CADE
MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance,
Licensing Enforcement, Utah Department of
Alcoholic Beverage Control, in their official
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDA SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities
Defendants.

MOTION FOR TEMPORARY

RESTRAINING ORDER,
PRELIMINARY INJUNCTION, AND
PERMANENT INJUNCTION AND
SUPPORTING MEMORANDUM

Case No.: 2:16-cv-00318-DN

Judge: David Nuffer

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 2 of 33

MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY

INJUNCTION, AND PERMANENT INJUNCTION
Pursuant to Fed. R. Civ. P. 65, plaintiff Cinemapub, L.L.C., d/b/a Brewvies (Brewvies)
moves for (1) a temporary restraining order enjoining defendants from taking any agency action
against Brewvies pursuant to Utah Code section 32B-1-504(7) until a hearing on the preliminary
injunction; (2) a preliminary injunction enjoining defendants from taking any agency action
against Brewvies pursuant to Utah Code section 32B-1-504(7) during the pendency of this
action; and (3) a permanent injunction enjoining defendants from enforcing Utah Code section
32B-1-504(7) as currently enacted.
In support of this motion, plaintiff relies upon the Memorandum, the Affidavit of Randall
Miller, and the Verified Complaint. Expedited consideration is requested. A proposed order for
expedited treatment and a proposed order for a Temporary Restraining Order are attached as
Exhibit B and Exhibit C respectively.

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 3 of 33

MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING

ORDER, PRELIMINARY INJUNCTION, AND PERMANENT INJUNCTION
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ......................................................................................................................... iii
BACKGROUND ........................................................................................................................... iii
ARGUMENT .................................................................................................................................. 1
I. BREWVIES WILL PREVAIL ON THE MERITS BECAUSE UTAH CODE SECTION
32B-1-504(7) IS A CONTENT-BASED RESTRICTION THAT IS UNCONSTITUTIONAL
ON ITS FACE AND AS APPLIED AND CANNOT BE JUSTIFIED UNDER THE
TWENTY-FIRST AMENDMENT. ........................................................................................... 2
A. Utah Code section 32B-1-504(7) is facially overbroad because it goes beyond limiting
unprotected forms of speech and restricts and punishes fully protected free expression. ...... 8
B. Utah Code section 32B-1-504(7) is unconstitutional as applied to Brewvies.................. 11
C. Strict scrutiny applies and Utah Code section 32B-1-504(7) is constitutionally invalid
because it is a content-based restriction on free speech. ....................................................... 14
D. Utah Code section 32B-1-504(7) does not serve a compelling governmental interest, and
it is not the least restrictive means for accomplishing any compelling interest, even if there
were one. ............................................................................................................................... 16
E. Brewvies will prevail under the Utah Constitution because Article 1, sections 1 and 15
provide broader protections than the Federal Constitution under these circumstances. ....... 18
II. BREWVIES WILL SUFFER IRREPARABLE INJURY IF THE TRO AND
PRELIMINARY INJUNCTION ARE NOT GRANTED BECAUSE THE AGENCY
ACTION IS A VIOLATION OF THE FIRST AMENDMENT, CAUSING A CHILLING
EFFECT AND SUBJECTING BREWVIES TO ONGOING PUNITIVE PROCEEDINGS. . 20
III. THE THREATENED INJURY TO BREWVIES OUTWEIGHS THE HARM, IF ANY,
THE TRO AND PRELIMINARY INJUNCTION MAY CAUSE THE DEFENDANTS AND
THE DABC. .............................................................................................................................. 21
IV. GRANTING BREWVIESS REQUEST FOR A TRO AND A PRELIMINARY
INJUNCTION SERVES THE PUBLIC INTERST. ................................................................ 22
V. THIS COURT SHOULD ALSO ISSUE A PERMANENT INJUNCTION WITHOUT
DELAY. .................................................................................................................................... 23
CONCLUSION ............................................................................................................................. 24

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 4 of 33

TABLE OF AUTHORITIES
Cases
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) .............................................. 2, 4, 9, 13
Am. Bush v. City of S. Salt Lake, 2006 UT 40, 140 P.3d 1235 ..................................................... 18
Bushco v. Utah State Tax Comm'n, 2009 UT 73, 225 P.3d 153 ................................................... 18
California v. LaRue, 409 U.S. 109 (1972) .............................................................................. 3, 8, 9
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)............................................................ 22
Elrod v. Burns, 427 U.S. 347 (1976). ........................................................................................... 19
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) .................................................. 4
Gooding v. Wilson, 405 U.S. 518 (1972) ........................................................................................ 8
Miller v. California, 413 U.S. 15 (1973) ........................................................................................ 8
Ne. Florida Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d
1283 (11th Cir. 1990)................................................................................................................ 23
Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005) ....................................... 20
Perry v. Sindermann, 408 U.S. 593 (1972)................................................................................... 12
Police Dept. of City of Chicago v. Mosely, 408 U.S. 92 (1972) ............................................. 14, 15
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ............................................................. 8, 14
Utah Licensed Beverage Assn v. Leavitt, 256 F.3d 1061 (10th Cir. 2001) ....................... 6, 20, 21
Constitutional Provisions
U.S. CONST. amend. I .................................................................................................................... 15
UTAH CONST. art. I, 1. ................................................................................................................ 16
UTAH CONST. art. I, 15 ............................................................................................................... 15
Statutes
Idaho Code 23-614(e) .................................................................................................................. 7
Utah Code Ann. 32B-1-502 ....................................................................................................... 14
Utah Code Ann. 32B-1-504(7) ........................................................................................... passim
Other Authorities
Brian Truitt, Review: Deadpool kills with its daffy humor, USA TODAY (Feb. 13, 2016)
http://www.usatoday.com/story/life/movies/2016/02/09/review-deadpool-movie-ryanreynolds/80059854/.................................................................................................................... iv
Holly Beech, Idaho revises obscenity law that spurred theater lawsuit, MERIDIAN PRESS (April 5,
2016) http://www.mymeridianpress.com/meridian/idaho-revises-obscenity-law-that-spurredtheater-lawsuit/article_11bc920e-0aa2-5c1f-b96b-4a19d38b5390.html .................................... 6
Richard Brody, The Deadpool phenomenon and the American male, THE NEW YORKER (Feb.
18, 2016) http://www.newyorker.com/culture/richard-brody/the-deadpool-phenomenon-andthe-american-male................................................................................................................ iv, 10
Sean P. Means, Movie review: Deadpool rips apart the Marvel model, with blood and quips,
THE SALT LAKE TRIBUNE (Feb. 17, 2016) http://www.sltrib.com/home/3514259-155/moviereview-deadpool-rips-apart-the .................................................................................................. iv
Tim Cushing, Theater Sues State Police For Using State Liquor Laws To Walk All Over The
First Amendment, TECHDIRT (Jan. 26, 2016),
ii

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 5 of 33

https://www.techdirt.com/articles/20160121/10335133396/theater-sues-state-police-usingstate-liquor-laws-to-walk-all-over-first-amendment.shtml......................................................... 6

INTRODUCTION
Defendant Nina McDermott (McDermott), an official with the Utah Department of
Alcoholic Beverage Control (DABC), issued a Notice of Agency Action against the plaintiff,
Cinemapub, L.L.C., d/b/a Brewvies (Brewvies), threatening to fine Brewvies and suspend or
terminate Brewviess liquor license because Brewvies showed the movie Deadpool on one of its
two movie screens in February of 2016. Because the defendants and DABC rely on an
unconstitutional statute to restrict or censor movies protected under the First Amendment and the
Utah Constitution, Brewvies respectfully requests a temporary restraining order and preliminary
and permanent injunctive relief.
BACKGROUND
Brewvies operates a two-screen movie theater and is licensed to sell alcohol in Utah.1 It
does not allow anyone under twenty-one years old to enter its premises.2 Between February 12,
2016, and March 24, 2016, Brewvies showed the movie Deadpool on one of its screens.3 Deadpool
is a critically acclaimed film starring Ryan Reynolds and distributed by Fox.4 As of March 20,
2016, it had grossed over $731 million worldwide, making it the highest grossing R-rated movie
in the history of film.5 At its height, it was playing in 3,856 movie theaters in the United States.6

Affidavit of Randall Miller 4 (hereinafter Miller Affidavit), attached hereto as Exhibit A.

Id.
3
Miller Affidavit 5.
4
Miller Affidavit 6.
5
Id.
6
Id.
1
2

iii

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 6 of 33

As of April 15, 2016, Deadpool was still showing in at least seven movie theaters in Northern
Utah.7 One reviewer for The New Yorker made the following observation about Deadpool:
For all the potty-mouthed splashiness of the dialogue, for all the hectic violence of
the action, for all the central couples blatant and sophisticated (but briefly shown)
eroticism, Deadpool is a movie of crystalline purity, of redemptive virtue.8
A reviewer for USA Today noted that Deadpool avoids enough pitfalls to both embrace and
flamb the superhero genre while also finding time for romance, doling out equal handfuls of
bullets, barbs and warm fuzzies.9 A reviewer in the Salt Lake Tribune wrote that Deadpool is a
scalding-hot satire on the superhero genre that gives star Ryan Reynolds the snarky platform hes
always needed.10
McDermott, an officer at the DABC, indicated that showing Deadpool at an establishment
that served alcohol is a violation of Utah Code section 32B-1-504(7).11 Officials at the DABC
launched an investigation, causing the Utah Bureau of Investigation to assign three undercover
agents to engage in a covert operation at Brewvies on February 26, 2016.12 All of the agents, on
their own, had seen Deadpool at least once before, and one agent had even seen Deadpool twice
before.13 At least one agent ordered a beer during the covert operation at Brewvies.14 The

Miller Affidavit 7.
Richard Brody, The Deadpool phenomenon and the American male, THE NEW YORKER (Feb.
18, 2016), http://www.newyorker.com/culture/richard-brody/the-deadpool-phenomenon-and-theamerican-male.
9
Brian Truitt, Review: Deadpool kills with its daffy humor, USA TODAY (Feb. 13, 2016),
http://www.usatoday.com/story/life/movies/2016/02/09/review-deadpool-movie-ryanreynolds/80059854/.
10
Sean P. Means, Movie review: Deadpool rips apart the Marvel model, with blood and quips,
THE SALT LAKE TRIBUNE (Feb. 17, 2016), http://www.sltrib.com/home/3514259-155/moviereview-deadpool-rips-apart-the.
11
Miller Affidavit Exhibit 5.
12
Id.
13
Id.
14
Id.
8

iv

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 7 of 33

undercover agents then watched Deadpool and took notes.15 In their reports, they noted the
following scenes from the movie:
a. A bedroom scene in which the main character touches his girlfriends breast.
b. A bedroom scene in which the main characters girlfriend looks to be sodomizing
him, although it is not shown.
c. A fight scene in which the main character is briefly displayed fully nude.
d. A short scene of the main character simulating masturbation in his bed.
e. A scene at a strip club with female nudity in the foreground and background.
f. An animated sequence in the final credits that depicts a man rubbing a unicorns
horn until a rainbow shoots out.16
Based on these reports, officials at the DABC filed a Notice of Agency Action against
Brewvies.17 In the notice, the officials alleged that Brewvies had violated Utah law because it had
shown a movie that depicted (1) an act or simulated act of sodomy, bestiality, or oral copulation,
and (2) a scene wherein a person displayed their genitals . . . . 18 The DABC officials then
threatened to seek enforcement of penalties including a 10 day license suspension up to a
revocation of [Brewviess] club license and/or a $1,000 TO $25,000 fine.19
The agency action against Brewvies is not the first time officials of the DABC have
intimidated and threatened Brewvies with penalties for displaying movies protected under the First
Amendment and the Utah Constitution. In 2011, the DABC sought to enforce penalties against
Brewvies for showing the movie The Hangover Part II.20 Because the owner of Brewvies, Randall
Miller, felt intimidated and was afraid he might lose his business, he agreed to pay a fine of
$1,627.21 In an interview following the payment of the fine, Francine Giani, the interim director

15

Id.
Miller Affidavit Exhibit 5.
17
Id.
18
Id.
19
Id.
20
Miller Affidavit 15, Exhibit 6.
21
Id.
16

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 8 of 33

of the DABC, expressed her belief that the DABC had legal authority to punish Brewvies because
the Utah law was based on a California law the United States Supreme Court upheld in 1973.22
A few years later, in 2015, a representative of the DABC wrote an e-mail to Mr. Miller
threatening him with further agency action for showing movies the DABC officials found to offend
Utah Code section 32B-1-504(7). The DABC representative wrote: Please make sure you preview
all movies you will be showing. This ensures we can keep you from citations or law enforcement
referring you for violations against your liquor license.23
Through counsel, Brewvies responded to the e-mail in a letter, pointing out that Brewvies
did not show any obscene or pornographic movies and that all of Brewviess customers were over
twenty-one years old.24 On July 23, 2015, Sheila Page, counsel for the DABC, responded by
claiming the DABC had punished another club, not just Brewvies, for showing films with similar
content.25 Ms. Page went on to complain that Brewvies has chosen to meld the serving of alcohol
and the showing of films.26 She wrote, The management has the option of being a motion picture
theater without alcohol service.27 She concluded her response by reasserting that Brewvies needed
to screen films for possible illegal conduct if it wanted to avoid future fines and punishments.28
Almost a year later, McDermott, a DABC official, prepared, signed, and caused to be
mailed the current Notice of Agency Action against Brewvies for showing Deadpool. The DABC
scheduled a pre-hearing conference to resolve the matter or expedite future proceedings on April

22

Miller Affidavit Exhibit 6.

Miller Affidavit 17, Exhibit 7.
24
Miller Affidavit Exhibit 7.
25
Miller Affidavit Exhibit 8.
26
Id.
27
Id. (emphasis in original).
28
Id.
23

vi

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 9 of 33

20, 2016, at 10:00 a.m.29 The DABC agreed to postpone the pre-hearing,30 and then voluntarily
stayed the administrative proceedings regarding the showing of Deadpool.31
Brewvies has filed the Complaint in this action, asking this Court to declare Utah Code
section 32B-1-504(7) unconstitutional under the First Amendment of the United States
Constitution and Article 1, sections 1 and 15 of the Utah Constitution. It now moves for a
temporary restraining order, a preliminary injunction, and a permanent injunction enjoining the
defendants from continuing their unconstitutional actions against Brewvies.
ARGUMENT
This Court should grant Brewviess request for a temporary restraining order (TRO), a
preliminary injunction, and a permanent injunction to prevent the chilling effect on free speech
and the unconstitutional fine, or threat of a fine, and possible suspension or revocation of
Brewviess liquor license that will follow if the defendants are allowed to continue to punish and
threaten to punish Brewvies for showing films protected under the First Amendment and the Utah
Constitution.
To prevail on a motion for a TRO or a preliminary injunction, a movant must show:
(1) a substantial likelihood of success on the merits; (2) irreparable harm to the
movant if the injunction is denied; (3) the threatened injury outweighs the harm that
the preliminary injunction may cause the opposing party; and (4) the injunction, if
issued, will not adversely affect the public interest.32
To obtain a permanent injunction, a plaintiff must show:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and defendant, a remedy
29

Miller Affidavit Exhibit 5.

Miller Affidavit 10.
31
Id. 23.
32
General Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007).
30

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 10 of 33

in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction.33
Because these factors overlap significantly, they will first be addressed in the context of
Brewviess motion for a temporary restraining order and a preliminary injunction. The arguments
will then be incorporated into the factors for a permanent injunction.
I. BREWVIES WILL PREVAIL ON THE MERITS BECAUSE UTAH CODE
SECTION
32B-1-504(7)
IS
A
CONTENT-BASED
RESTRICTION
UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED AND CANNOT BE
JUSTIFIED UNDER THE TWENTY-FIRST AMENDMENT.
Utah Code section 32B-1-504(7), the statute upon which defendants rely to punish
Brewvies, is an impermissible content-based restriction on free speech that cannot be justified by
the states authority to regulate the importation of alcohol under the Twenty-first Amendment.
[T]he Twenty-first Amendment does not qualify the constitutional prohibition against laws
abridging freedom of speech embodied in the First Amendment.34
Utah Code section 32B-1-504(7) purports to forbid an establishment licensed to serve
alcohol in Utah from:
showing a film . . . depicting:
(a) an act or simulated act of:
(i) sexual intercourse;
(ii) masturbation;
(iii) sodomy;
(iv) bestiality;
(v) oral copulation;
(vi) flagellation; or
(vii) a sexual act that is prohibited by Utah law;
(b) a person being touched, caressed, or fondled on the breast, buttocks,
anus, or genitals;
(c) a scene wherein an artificial device or inanimate object is employed to
depict, or a drawing is employed to portray, an act prohibited by this section; or
(d) a scene wherein a person displays the genitals or anus.35
33

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996).
35
Utah Code Ann. 32B-1-504(7).
34

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 11 of 33

The defendants and the DABC apparently have been under the mistaken assumption that
Utah Code section 32B-1-504(7) conforms with the United States Constitution because of the
United States Supreme Courts review of the constitutionality of a similarly worded statute in 1972
in California v. LaRue.36 In LaRue, the State of California took action against establishments
licensed to sell alcohol where the following types of extremely sordid public conduct were taking
place:
Customers were found engaging in oral copulation with women entertainers;
customers engaged in public masturbation; and customers placed rolled currency
either directly into the vagina of a female entertainer, or on the bar in order that she
might pick it up herself. Numerous other forms of contact between the mouths of
male customers and the vaginal areas of female performers were reported to have
occurred.
Prostitution occurred in and around such licensed premises, and involved some of
the female dancers. Indecent exposure to young girls, attempted rape, rape itself,
and assaults on police officers took place on or immediately adjacent to such
premises.37
The Supreme Court acknowledged that these regulations on their face would proscribe some
forms of visual presentation that would not be found obscene.38 Still, it reasoned that, because
alcohol was involved, the state had greater powers to regulate speech based on the Twenty-first
Amendment.39 Relying on this interpretation of the Twenty-first Amendment, the Court upheld
the California statute.40
That all changed in 1996. The Supreme Court revisited this question in 44 Liquormart, Inc.
v. Rhode Island.41 This time, the Court recognized the text of the Twenty-first Amendment

36

409 U.S. 109 (1972).

Id. at 111.
38
Id. at 117.
39
Id.
40
Id. at 119.
41
517 U.S. 484 (1996).
37

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 12 of 33

supports the view that, while it grants the States authority over commerce that might otherwise
be reserved to the Federal Government, it places no limit whatsoever on other constitutional
provisions.42 The Court in 44 Liquormart reasoned the result of the LaRue case would have been
the same under a First Amendment analysis as pertains to the bacchanalian revelries that were
at issue in LaRue.43 But it explicitly disavow[ed] the flawed reasoning in LaRue.44 It wrote,
[W]e now hold that the Twenty-first Amendment does not qualify the constitutional prohibition
against laws abridging the freedom of speech embodied in the First Amendment.45 As a result,
the Supreme Court determined that Rhode Islands ban on liquor price advertising was
unconstitutional and the Twenty-first Amendment could not save it.46
After 44 Liquormart, federal circuit courts have relied on it to enjoin states from enforcing
statutory schemes that limit free expression in establishments licensed to sell alcohol.47
LSO, Ltd. v. Stroh dealt with a statute virtually identical to Utah Code section 32B-1-504(7)
and not only granted injunctive relief against its enforcement, but found the defendants did not
enjoy qualified immunity because the law was clearly established as of 1997, when the events

42

Id. at 515 (emphasis added).

Id. 51516.
44
Id. at 516.
45
Id.
46
Id. While parts of the Supreme Courts opinion in 44 Liquormart represented the view of only
a plurality of justices, the entire Court agreed with the determination that the Twenty-first
Amendment does not abridge the First Amendment in any way. Justices Scalia, Kennedy, Souter,
Thomas, and Ginsburg joined Justice Stevens in part VII of the opinion, in which the Court ruled
that the Twenty-first Amendment does not qualify the constitutional prohibition against laws
abridging the freedom of speech embodied in the First Amendment. 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 487, 516 (1996). Justice OConnor wrote a concurring opinion, joined by
Chief Justice Rehnquist, Justice Souter, and Justice Breyer, concluding that the Twenty-first
Amendment cannot save an otherwise invalid restriction on speech. Id. at 1523 (OConnor, J.,
concurring).
47
See, e.g., Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002); LSO, Ltd. v. Stroh,
205 F.3d 1146 (9th Cir. 2000).
43

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 13 of 33

in that case had occurred.48 In that case, LSO wanted to put on a Sensual and Erotic Art
Exhibition at a convention center in California that was licensed to serve alcohol. 49 It was
undisputed the art exhibit was not obscene, but the exhibit still fell within the reach of Californias
statute regulating alcohol, which is nearly identical, in relevant part, to Utah Code section 32B-1504(7).50 California officials threatened to stop the art exhibit, but LSO obtained a temporary
restraining order against the state.51 LSO then sued for injunctive relief and attorney fees.52
The state officials claimed that because the Supreme Court in 44 Liquormart did not
explicitly disavow its earlier holding in California v. LaRue . . . it was unclear whether [the statute]
could be constitutionally employed to punish the display of non-obscene art.53 The United States
Court of Appeals for the Ninth Circuit disagreed and held that it was clearly established that
liquor regulations could not be used to impose restrictions on speech that would otherwise be
prohibited under the First Amendment.54 It further concluded that in 1997 no reasonable official
could have believed that the [statute] could constitutionally be employed to impede LSOs right to
display non-obscene art.55
The above cases leave no room for doubt that the power of a state to restrict speech or other
expression protected by the First Amendment is not enlarged by virtue of any authority vested by
the Twenty-first Amendment. In other words, if the state cannot restrict the showing of Deadpool

48

205 F.3d 1146, 1159 (9th Cir. 2000).

Id. at 1150.
50
Id. at 1151.
51
Id. at 1150.
52
Id.
53
Id. at 1158.
54
Id. at 1159.
55
Id. at 1160.
49

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 14 of 33

at the numerous movie theaters throughout the state where it has been showing,56 then neither can
the DABC restrict the showing of that film at Brewvies, or any other location, simply because
alcohol is being served. This understanding of the relationship between the First Amendment and
the Twenty-first Amendment has been manifested numerous times, including a case in Utah and
in recent Idaho legislation.
In Utah Licensed Beverage Assn v. Leavitt,57 the United States Court of Appeals for the
Tenth Circuit relied on 44 Liquormart to rule that Utahs restrictions on alcohol advertising were
in violation of the First Amendment.58 It specifically rejected Utahs claims that the Twenty-first
Amendment required deferential treatment of liquor laws restricting free speech.59 The Court in
Leavitt ruled the Twenty-first Amendment does not diminish First Amendment protections.60
Most recently, the State of Idaho tried to enforce a statute similar to Utah Code section
32B-1-504(7) against a movie theater showing the movie Fifty Shades of Grey while maintaining
a liquor license.61 The movie theater sued the State of Idaho claiming the statute was
unconstitutional.62

56

Deadpool was showing in at least seven movie theaters in Northern Utah as of April 15, 2016.
Miller Affidavit 7.
57
256 F.3d 1061 (10th Cir. 2001).
58
Id. at 1174.
59
Id.
60
Id. at 1075.
61
Cynthia Sewell, Theater sues Idaho for threat to revoke liquor license over 50 Shades, Idaho
Statesman (Jan. 20, 2016), http://www.idahostatesman.com/news/local/community/westada/article55612455.html.
62
Id.; see also Tim Cushing, Theater Sues State Police For Using State Liquor Laws To Walk All
Over The First Amendment, TECHDIRT (Jan. 26, 2016),
https://www.techdirt.com/articles/20160121/10335133396/theater-sues-state-police-using-stateliquor-laws-to-walk-all-over-first-amendment.shtml.
6

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 15 of 33

In response to the lawsuit, the Idaho Legislature acted quickly to revise the constitutionally
offensive law.63 According to the Meridian Press:
Rep. Joe Palmer, R-Meridian, said he sponsored the bill because the current
law unconstitutionally prohibited First Amendment rights and was putting state
police in a bad position.
(ISP) was going to get backed into a corner and we were going to lose in
court, he said.64
Rep. Palmers bill, Idaho House Bill No. 544, amended Idaho Code section 23-614(1)(e) to replace
language nearly identical to Utah Code section 32B-1-504(7) with language that restricts only
indecent and obscene films and images.65
In the current case, Brewvies is likely, indeed certain, to prevail on the merits because the
Twenty-first Amendment does not allow the State of Utah to dictate which movies can be shown
at a theater licensed to sell alcohol based on the content of those movies. Only a First Amendment
analysis applies to the case at hand. This leads to the following conclusions: (1) Utah Code section
32B-1-504(7) is unconstitutionally overbroad on its face; (2) the statute is unconstitutional as
applied to the screening of Deadpool by Brewvies; (3) because it is a content-based statute, the
strict scrutiny test applies; (4) the state lacks a compelling interest in censoring a non-obscene film;
(5) the statutory restrictions are not the only means of serving a compelling government interest,
even if there were one; and (6) the statute is invalid under Article 1, sections 1 and 15 of the Utah
Constitution and the First Amendment of the United States Constitution.

63

Holly Beech, Idaho revises obscenity law that spurred theater lawsuit, MERIDIAN PRESS (April
5, 2016), http://www.mymeridianpress.com/meridian/idaho-revises-obscenity-law-that-spurredtheater-lawsuit/article_11bc920e-0aa2-5c1f-b96b-4a19d38b5390.html.
64
Id.
65
Idaho Code 23-614(e); Miller Affidavit, Exhibit 9.
7

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 16 of 33

A. Utah Code section 32B-1-504(7) is facially overbroad because it goes beyond

limiting unprotected forms of speech and restricts and punishes fully protected
free expression.
Brewvies is likely, indeed certain, to prevail on the merits in this action because the Utah
statute does not limit itself to unprotected forms of speech, such as obscenity and fighting words,
and includes protected free speech in the form of art and film. A content-based statute is
presumptively invalid unless it is limited to unprotected speech.66
Obscenity is one of the few limited areas of unprotected speech where a restriction on
content does not automatically offend the First Amendment. The Supreme Court has explained
obscenity as follows:
The basic guidelines for [determining obscenity] must be: (a) whether the average
person, applying contemporary community standards would find that the work,
taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.67
A statute is facially invalid for being overbroad if it is susceptible of application to speech,
although vulgar or offensive, that is protected by the First and Fourteenth Amendments.68 Justice
Marshall dissented in LaRue because he correctlyand prescientlyobserved the Twenty-first
Amendment could not limit the application of First Amendment protections.69 Without the
Twenty-first Amendment blocking his vision, Justice Marshall found the California statute, which
is substantively identical to the Utah statute in question, was facially overbroad. He wrote:
It should be clear at the outset that Californias regulatory scheme does not conform
to the standards which we have previously enunciated for the control of
obscenity. . . . They do not require the material to be judged as a whole and do not
speak to the necessity of proving prurient interest, offensiveness to community
66

See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992).
Miller v. California, 413 U.S. 15, 24 (1973) (citations omitted).
68
Gooding v. Wilson, 405 U.S. 518, 520 (1972).
69
See California v. LaRue, 409 U.S. 109, 134 (1972) (Marshall, J., dissenting).
67

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 17 of 33

standards, or lack of redeeming social value. Instead of the contextualized test . . .

these regulations create a system of per se rules to be applied regardless of context:
Certain acts simply may not be depicted and certain parts of the body may under
no circumstances be revealed. The regulations thus treat on the same level a serious
movie such as Ulysses and a crudely made stag film. They ban not only
obviously pornographic photographs, but also great sculpture from antiquity. 70
Since 44 Liquormart, Inc. v. Rhode Island,71 and as restated by LSO, Ltd. v. Stroh,72 Justice
Marshalls dissent in LaRue is now the correct statement of the controlling constitutional law.
Because Utah Code section 32B-1-504(7), like the California statute in LaRue, goes far
beyond restricting obscenity, it is presumptively invalid on its face. Section 504(7) forbids movies,
photographs, and drawings that depict a real or simulated act of sexual intercourse, masturbation,
sodomy, or oral copulation.73 It also forbids movies, photographs, and drawings that show a person
being touched on the breast, buttocks, or genitals or that shows the genitals in any way.74 These
restrictions are categorical, without consideration of the factors for obscenity.
Based on the plain language of the statute, an establishment licensed to sell alcohol in Utah
would be threatened with punishment for showing an image of classics such as Michelangelos
statue of David (displaying genitals) or Botticellis The Birth of Venus (touching the breast)75

70

Id. at 12627 (Marshall, J., dissenting).

517 U.S. 484 (1996).
72
205 F.3d 1146 (9th Cir. 2000).
73
See Utah Code Ann. 32B-1-504(7).
74
Id. 32B-1-504(7)(b), (c), (d).
71

75

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 18 of 33

or contemporary works such as satirist Charles Braggs sculpture Ship of Fools (masturbation).76
The statute prohibits showing a person being touched on the genitals, but it does not indicate
whether this prohibited touching is limited to exposed genitals or whether it applies to over-theclothing touching as well.77 Therefore, it may be broad enough to prohibit the showing of baseball
games and soccer matches on television.78 Indeed, it would prohibit films, photos, or other
expressions and depictions of much art and religious history throughout thousands of years in
almost every civilization.
The history of erotic depictions includes paintings, sculpture, photographs,
dramatic arts, music, and writings that show scenes of a sexual nature throughout
time. They have been created by nearly every civilization, ancient and modern.
Early cultures often associated the sexual act with supernatural forces and thus their
religion is intertwined with such depictions. In Asian countries such as India, Nepal,
Sri Lanka, Japan and China, representations of sex and erotic art have specific
spiritual meanings within native religions. The Greeks and Romans produced much

76

77

See Utah Code Ann. 32B-1-504(7)(b).

78

10

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 19 of 33

art and decoration of an erotic nature, much of it integrated with their religious
beliefs and cultural practices.79
Utahs statute is facially overbroad because it goes far beyond restricting obscenity and
punishes protected free expression in the form of movies, photographs, and drawings.
B. Utah Code section 32B-1-504(7) is unconstitutional as applied to Brewvies.
Not only is the statute invalid and overbroad on its face, it is also unconstitutional as applied
to Brewvies because of the ongoing threats, intimidation, chilling of free speech and expression,
and disciplinary proceedings, a fine, and the current threat of a substantial fine and/or suspension
or revocation of Brewviess liquor license, which would mean the destruction of Brewvies unique
business. As discussed earlier, the Utah statute is unconstitutional when applied to anything other
than obscene materials.
In this case, the defendants have applied the statute for years in a manner that goes far
beyond regulating obscene material and have punished, and threatened to punish, Brewvies for
showing non-obscene movies. The defendants made no claims that The Hangover Part II, Magic
Mike XXL, and Ted 2 were obscene, and have made no claim that Deadpool is obscene, for
obviously good reasons. In terms of entertainment and social value, Deadpool is of significant
worth. It is the highest grossing R-rated movie of all time and has garnered critical praise from a
variety of different publications, including the Salt Lake Tribune. As a satirical take on Americas
obsession with superheroes, it has a particularly high value. Richard Brody, writing for The New
Yorker identified Deadpool as encapsulating an important phenomenon of millennial manhood.
He wrote that American males, like the title character in Deadpool, want to be bad boys and good

79

Wikipedia, History of erotic depictions,

https://en.wikipedia.org/wiki/History_of_erotic_depictions (last visited April 24, 2016) (citing
Phillip S. Rawson, EROTIC ART OF THE EAST; THE SEXUAL THEME IN ORIENTAL PAINTING AND
SCULPTURE, 380 (1968)).
11

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 20 of 33

men.80 Brody also observed that despite the sex, violence, and humor of the film, it was a movie
of crystalline purity, of redemptive virtue.81 It is currently showing in at least seven movie theaters
in Northern Utah without incident or complaint. Even the undercover agents that were part of the
DABC investigation were fans of Deadpool. On their own, all of the agents had seen Deadpool
before going to Brewvies, and one agent had seen the movie twice already.82 Nevertheless, the
defendants applied Utah Code section 32B-1-504(7) to threaten Brewvies with punishment simply
for showing the film.
This is not the first time the defendants and the DABC have used Utah Code section 32B1-504(7) to create a chilling effect on free speech. In 2011, the DABC used the statute to intimidate
Brewvies into paying a fine for showing The Hangover Part II.83 An official at the DABC sent a
threatening e-mail to Brewvies in 2015, when Brewvies was showing Magic Mike XXL and Ted2,
warning Brewvies to pre-screen and censor the movies it showed to avoid any more punishments.
Sheila Page, counsel for the DABC, followed up on that e-mail, suggesting that Brewvies should
either stop selling alcohol or start censoring its movies.84 This course of conduct shows that the
defendants have, in an ongoing effort to censor First Amendment protected speech and expression,
applied the statute against Brewvies in a way that has penalized Brewvies for displaying nonobscene movies.
It is also unconstitutional to apply the statute in a way that uses a liquor license as leverage
to coerce Brewvies into forgoing a constitutional right. Even though a liquor license is a benefit

Richard Brody, The Deadpool phenomenon and the American male, THE NEW YORKER
(Feb. 18, 2016), http://www.newyorker.com/culture/richard-brody/the-deadpool-phenomenonand-the-american-male.
81
Id.
82
Miller Affidavit Exhibit 5.
83
Id. 15, 19.
84
Id. 18.
80

12

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 21 of 33

conferred by the State, the United States Supreme Court has long held that benefits like a state
license cannot be conditioned on the beneficiary giving up a constitutional right. In Perry v.
Sindermann, the Supreme Court explained as follows:

[A government] may not deny a benefit to a person on a basis that infringes his
constitutionally protected interestsespecially, his interest in freedom of speech.
For if the government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited. . . . Such interference with
constitutional rights is impermissible.85
In 44 Liquormart v. Rhode Island, the Supreme Court applied this well-established
principle to liquor licenses. It wrote, That the State has chosen to license its liquor retailers does
not change the [First Amendment] analysis. Even though government is under no obligation to
provide a person, or the public, a particular benefit, it does not follow that conferral of the benefit
may be conditioned on the surrender of a constitutional right.86
In Brewviess case, the defendants have attempted to condition Brewviess liquor license
on Brewvies surrendering its constitutional right to free speech under the First Amendment and
the Utah Constitution. Sheila Page, the DABCs counsel, communicated to Brewvies that if its
management did not want to be restricted in its choice of movies, it always had the option of
being a motion picture theater without alcohol service.87 As the Supreme Court noted in Perry,
[s]uch interference with constitutional rights is impermissible.88

85

408 U.S. 593, 597 (1972).

517 U.S. 484, 513 (1996).
87
Miller Affidavit Exhibit 8 (emphasis in original).
88
408 U.S. at 597.
86

13

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 22 of 33

Because showing Deadpool and other non-obscene films is protected expression and
because the defendants cannot condition Brewviess liquor license on it surrendering its free
speech rights, the statute is unconstitutional as applied.

C. Strict scrutiny applies and Utah Code section 32B-1-504(7) is

constitutionally invalid because it is a content-based restriction on free speech.
Brewvies will prevail on its claim because Utah Code section 32B-1-504(7) seeks to restrict
movies that theaters without a liquor license can show with full protection by the First Amendment.
That restriction is based on (1) the content of the movies and (2) whether the theater is licensed to
sell alcohol. When a statutory restriction on free speech is content-based, it is presumptively
invalid and strict scrutiny applies.89
In general, a statute cannot prohibit speech based on the subject matter or content of the
speech.90 The Supreme Court has ruled that above all else, the First Amendment means that
government has no power to restrict expression because of its message, its ideas, its subject matter,
or its content.91 A content-based statute, such as the Utah statute being considered here, is invalid
if it is not limited to unprotected speech.92 A facially content-based restriction on speech is only
valid if the state can show that the regulation is necessary to serve a compelling state interest and
that it is narrowly drawn to achieve that end.93
In Mosely, a statute attempted to restrict the time, place, and manner that a person could
picket in front of a school.94 The Court recognized that reasonable time, place and manner

89

See Police Dept. of City of Chicago v. Mosely, 408 U.S. 92, 95 (1972).
See id.
91
Id.
92
See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992).
93
Burson v. Freeman, 504 U.S. 191, 198 (1992).
94
Mosely, 408 U.S. at 9293.
90

14

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 23 of 33

regulations of picketing may be necessary to further significant governmental interests.95

However, the statute in Mosely limiting the time, place, and manner of picketing in front of a
school made an exemption for labor protests. Id. 93. The Supreme Court found that this exemption
made the statute content-based:
In this case, the ordinance itself describes impermissible picketing not in terms of
time, place, and manner, but in terms of subject matter. The regulation thus slip(s)
from the neutrality of time, place, and circumstance into a concern about content.
This is never permitted.96
In United States v. Playboy Entm't Grp., Inc.,97 the United States Supreme Court found that
a law restricting cable channels based on sexually explicit content was clearly content-based and
subject to strict scrutiny.98 The Court ruled, The speech in question is defined by its content; and
the statute which seeks to restrict it is content based. [The statute] applies only to channels
primarily dedicated to sexually explicit adult programming or other programming that is
indecent.99
Similar to the statute in Mosely, Utah Code section 32B-1-504(7) styles itself as a time,
place, and manner restriction. Section 502 of the statute states its purpose is to establish
reasonable and uniform time, place, and manner of operation requirements relating to attire,
conduct, and sexually oriented entertainers on premises or at an event at which an alcoholic product
is sold and to reduce the adverse secondary effects that the attire, conduct, and sexually oriented
entertainers may have upon communities of this state.100 By its own terms, the purpose of the
statute deals exclusively with live entertainment and expressive conduct. In no way does it explain

95

Id. at 98.
Id. at 99 (footnote omitted).
97
529 U.S. 803 (2000).
98
Id. at 810.
99
Id. at 811.
100
Utah Code Ann. 32B-1-502.
96

15

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 24 of 33

how this purpose could apply to the display of a non-obscene movie. Nevertheless, section 504 of
the statute specifically places restrictions on showing a film, still picture, electronic reproduction,
or other visual reproduction.101 It then defines the prohibited speech by describing the content:
an act or simulated act of . . . sexual intercourse; . . . masturbation; . . . sodomy; . . . bestiality; . .
. oral copulation; . . . flagellation; or . . . a sexual act that is prohibited by Utah law; . . . a person
being touched, caressed, or fondled on the breast, buttocks, anus, or genitals; . . . a scene wherein
a person displays the genitals or anus.102
Like the statute at issue in Mosely, Utah Code section 32B-1-504(7) slips from a contentneutral time, place, and manner restriction into an impermissible content-based restriction. As the
Supreme Court stated emphatically in Mosely, This is never permitted.103 Furthermore, the Utah
statute is virtually identical to the California statute at issue in LSO, Ltd. v. Stroh.104 In that case,
the state could not seriously dispute the statute was content-based.105 The same is true with the
Utah statute at question in this case. Because the Utah statute is a content-based restriction on free
speech, strict scrutiny must be applied.
D. Utah Code section 32B-1-504(7) does not serve a compelling governmental
interest, and it is not the least restrictive means for accomplishing any
compelling interest, even if there were one.
Brewvies is likely, indeed certain, to prevail on the merits of this case because the statute
does not serve a compelling governmental interest and is not the least restrictive means for
accomplishing any such interest, even if there were one. A facially content-based restriction on
speech is only valid if the defendants can show that the regulation is necessary to serve a

101

Id. 32B-1-504(7).
Id. 32B-1-504(7)(a)(d).
103
Mosely, 408 U.S. at 99.
104
205 F.3d 1146 (9th Cir. 2000).
105
See id. at 1158.
102

16

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 25 of 33

compelling state interest and that it is narrowly drawn to achieve that end. Burson v. Freeman,
504 U.S. 191, 198 (1992).
Under strict scrutiny, those defending the law bear the burden to prove that the law is the
least restrictive means for accomplishing a compelling interest. See United States v. Playboy
Entm't Grp, 529 U.S. 803, 817818 (2000).
The defendants cannot meet this burden. The Utah statute purports to protect the public
health, peace, safety, welfare, and morals. See Utah Code Ann. 32B-1-504. Section 504(7) deals
exclusively with film and images and categorically prohibits certain depictions, based solely on
their content. There is no compelling government interestand no threat to the public health,
peace, safety, welfare, and moralsin prohibiting the depiction of Michelangelos statue of
David, Botticellis Birth of Venus, Charles Braggs Ship of Fools, or other non-obscene
expressions, such as the movies screened at Brewvies that are being targeted by the DABC, which
are in violation of the unconstitutional section 504(7). If there were to be a compelling government
interest in prohibiting any depictions enumerated in section 504(7), that government interest would
be in prohibiting obscene depictions. It has already been shown that the statute is overbroad and
includes speech that is not obscene, including Deadpool and other movies screened at Brewvies.
Therefore, it is impossible for the defendants to show that the statute is the least restrictive means
of accomplishing the goal of protecting society from obscene materials.
The defendants cannot show that the Utah statute serves a compelling government interest.
Even if it were aimed at curbing obscenity, it is not the least restrictive means of accomplishing
that goal because it so clearly restricts non-obscene movies and other works. The statute, therefore,
is unconstitutional, and Brewvies must prevail on the merits.

17

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 26 of 33

E. Brewvies will prevail under the Utah Constitution because Article 1,

sections 1 and 15 provide broader protections than the Federal Constitution
under these circumstances.
Brewvies will prevail under the Utah Constitution as well because the text of the Utah
Constitution provides even greater protections against government intrusion on free speech. The
Utah Supreme Court has held that the language of the Utah Constitution seems to prohibit laws
which either directly limit protected rights or indirectly inhibit exercise of those rights and is by
its terms, somewhat broader than the federal clause.106
Article I, Section 15 of the Utah Constitution provides: No law shall be passed to abridge
or restrain the freedom of speech or of the press.107 The First Amendment provides that
Congress shall make no law . . . abridging the freedom of speech.108 The Utah Supreme Court
has determined that because the Utah Constitution forbids abridging and restraining free speech,
its governmental restriction clause . . . is broader than its federal counterpart.109 This means that
Article I, Section 15 of the Utah Constitution narrows the scope of permissible governmental
action in relation to forms of expression protected by the liberty and responsibility clause of the
Utah Constitution.110 The liberty and responsibility clause of the Utah Constitution states that
everyone has a right to communicate freely their thoughts and opinions, being responsible for the
abuse of that right.111

106

Am. Bush v. City of S. Salt Lake, 2006 UT 40, 21, 140 P.3d 1235 (citations and internal
quotation marks omitted).
107
UTAH CONST. art. I, 15 (emphasis added).
108
U.S. CONST. amend. I.
109
Am. Bush, 2006 UT 40, 21.
110
Id.
111
UTAH CONST. art. I, 1.
18

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 27 of 33

Under the Utah Constitution, a statute is content-based and is subject to strict scrutiny if it
classif[ies] based on the content of protected expression.112 Therefore if a statute is contentbased, it will receive at least the same, and perhaps even a higher, level of scrutiny under the Utah
Constitution as under the United States Constitution. The Utah Constitution also goes further in
restricting what the government may do in regulating the free communication of thoughts and
ideas.
Under Utah law, Utah Code section 32B-1-504(7) is a content-based regulation because it
deals only with expressionnot conductand it classifies certain films and images as prohibited
based solely on their content, i.e., display of genitals, showing the touching of the breast or
buttocks, simulating oral copulation, etc.113 In other words, the statute is aimed at restricting the
free communication of thoughts based on the kinds of thoughts that are being communicated. It
has already been established that the statute cannot survive strict scrutiny under the applicable First
Amendment analysis. Here, it is not necessary to determine the precise boundaries of the Utah
Constitution. It is enough to recognize that the Utah Constitution is broader than the Federal
Constitution in restricting government action that burdens free speech. If the statute is invalid
under the narrower restriction of the United States Constitution, then it is also invalid under the
broader restriction of the Utah Constitution. Therefore, Brewvies must prevail on the merits under
the Utah Constitution as well.

112
113

Bushco v. Utah State Tax Comm'n, 2009 UT 73, 16, 225 P.3d 153.
Utah Code Ann. 32B-1-504(7).
19

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 28 of 33

II. BREWVIES WILL SUFFER IRREPARABLE INJURY IF THE TRO AND

PRELIMINARY INJUNCTION ARE NOT GRANTED BECAUSE THE AGENCY
ACTION IS A VIOLATION OF THE FIRST AMENDMENT, CAUSING A
CHILLING EFFECT AND SUBJECTING BREWVIES TO ONGOING PUNITIVE
PROCEEDINGS.
The defendants continuing threat to punish Brewvies for exercising its free speech rights
under the United States and Utah Constitutions, although currently voluntarily stayed by the
DABC, has caused an ongoing chilling effect and is an ongoing irreparable injury that will continue
if a TRO and preliminary injunction are not granted. The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.114
In Elrod, respondents sought a preliminary injunction even though one of them was only
threatened with discharge at the time.115 Considering the importance of the First Amendment
rights at stake, the Supreme Court determined that was sufficient to constitute irreparable injury.116
The Tenth Circuit Court of Appeals has held that when the government deprives a person of his or
her free speech rights, it is assumed the person will suffer an irreparable harm for the purposes of
granting a TRO or a preliminary injunction.117
Brewvies is currently the subject of an ongoing agency action, as well as continuing
unconstitutional threats of punishment for engaging in constitutionally protected conduct. The
defendants Notice of Agency Action has ordered a Brewvies representative to appear at a prehearing conference. That conference has now been scheduled for May 4, 2016, at 1 p.m. This
enforcement action is a direct violation of Brewviess First Amendment rights. It has created a
chilling environment in which Brewvies is under constant threat of being penalized or even

114

Elrod v. Burns, 427 U.S. 347, 373 (1976).

Id.
116
Id.
117
Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005); Utah Licensed
Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001).
115

20

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 29 of 33

destroyed by the DABC for exercising Brewviess right to screen films that violate Utah Code
section 32B-1-504(7) even when the films are not obscene.
Because this is an irreparable harm to Brewviess free speech rights, the second prong of a
TRO and preliminary injunction has been met.
III. THE THREATENED INJURY TO BREWVIES OUTWEIGHS THE HARM, IF
ANY, THE TRO AND PRELIMINARY INJUNCTION MAY CAUSE THE
DEFENDANTS AND THE DABC.
The irreparable injury to Brewvies far outweighs any minor inconvenience the granting of
a TRO and a preliminary injunction will cause the defendants and the DABC because the DABC
will still be free to regulate alcohol in ways that do not violate the First Amendment.
In Utah Licensed Beverage Ass'n v. Leavitt,118 the United States Court of Appeals for the
Tenth Circuit determined the State of Utah would not be harmed more than the plaintiffs if a
preliminary injunction were granted forbidding the state from restricting the plaintiffs commercial
speech right to advertise alcohol.119 The state claimed it would be harmed because alcohol
consumption might increase in the absence of its regulations.120 The Court found that unconvincing
and ruled, In the meantime, Utah unquestionably retains the power to attack alcohol-related
problems through methods that do not restrict speech.121
The same is true here. The harm the defendants face is non-existent, or negligible at best.
They will have to continue to stayor, one hopes, cancelthe pending agency action against
Brewvies. This amounts to little more than a scheduling inconvenience, but one that comports
with, rather than violates, the First Amendment of the United States Constitution and Article I,

118

256 F.3d 1061 (10th Cir. 2001).

Id. at 1076.
120
Id.
121
Id.
119

21

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 30 of 33

sections 1 and 15 of the Utah Constitution. On the other hand, Brewvies faces continuing
intimidation and official censure for exercising its First Amendment rights and free speech rights
under the Utah Constitution. Brewviess harm far outweighs any sustained by the defendants. In
the meantime, the DABC will continue to be free to regulate alcohol in ways that do not restrict
free speech. Therefore, the third prong for the granting of a TRO and a preliminary injunction has
been met.
IV. GRANTING BREWVIESS REQUEST FOR A TRO AND A PRELIMINARY
INJUNCTION SERVES THE PUBLIC INTERST.
In seeking a TRO and a preliminary injunction, Brewvies seeks to protect its freedom of
speech under the First Amendment and the Utah Constitution. Enjoining the enforcement of a law
that violates the First Amendment is not adverse to the public interest.122 Indeed, in the context
of First Amendment rights, the Tenth Circuit Court of Appeals has held that the public interest
favors granting injunctive relief.123
In this case, a violation of Brewviess freedom of speech is also a violation of the
constitutional rights of Brewviess customers and prospective customers. Utah Code section 32B1-504(7) obviously violates the First Amendment and the Utah Constitution. The public interest
will be served by enjoining the defendants from enforcing the unconstitutional statute against
Brewvies.

122
123

Utah Licensed Beverage Ass'n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001).
Elam Const., Inc. v. Reg'l Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997).
22

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 31 of 33

V. THIS COURT SHOULD ALSO ISSUE A PERMANENT INJUNCTION

WITHOUT DELAY.
In the interests of judicial economy and saving the parties unnecessary attorney fees, costs,
and delay, the Court should also grant a permanent injunction. To obtain a permanent injunction,
a plaintiff must demonstrate:
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and defendant, a remedy
in equity is warranted; and (4) that the public interest would not be disserved by a
permanent injunction.124
In this case, the relevant facts have already been established in the Verified Complaint and
the Miller Affidavit. Therefore, there is no reason why this Court should not grant a permanent
injunction at this time. The first, third, and fourth factors of the test for a permanent injunction are
substantially similar to the factors for a TRO and preliminary injunction. The arguments
supporting those factors are incorporated here. Brewvies has suffered an irreparable harm by the
defendants actions, which have created a chilling effect on free speech and have subjected
Brewvies to a punitive agency action, as well as an ongoing threat of future punishment for
exercising its First Amendment rights.125 The hardship to the defendants is negligible at best and
does not outweigh the injury to Brewvies.126 The public interest is advanced by protecting free
speech rights.127 The remaining factor for a permanent injunction, whether remedies available at
law are inadequate, compels the relief sought by plaintiff.
The nature of free speech makes it particularly difficult to fashion a remedy at law for its
suppression. The United States Court of Appeals for the Eleventh Circuit has observed that chilled

124

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

Supra, Part II.
126
Supra, Part III.
127
Supra, Part IV.
125

23

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 32 of 33

free speech . . . because of [its] intangible nature, could not be compensated for by monetary
damages; in other words, plaintiffs could not be made whole.128
The right infringed upon by the defendants actions in this case, and by the continuing
existence of Utah Code section 32B-1-504(7), cannot be remedied at law. The right to freely and
openly communicate thoughts and ideas through film without the burden of unconstitutional
government censorship is an intangible one that cannot be righted solely through monetary means.
Brewvies seeks to exercise its right to display non-obscene movies, unencumbered by the threats
of government censorship under Utah Code section 32B-1-504(7). Defendants should be
permanently enjoined from punishing it, or threatening to punish it, for doing so, and the statute
that has served as the basis for the unconstitutional censorship should be declared unconstitutional.
CONCLUSION
Brewvies respectfully urges this Court to grant a temporary restraining order until a hearing
can be set for a preliminary injunction. A copy of the proposed Temporary Restraining Order is
attached as Exhibit C. Brewvies also requests a preliminary injunction enjoining the enforcement
of Utah Code section 32B-1-504(7) during the pendency of this action. Brewvies has shown it is
likely to prevail on the merits; it will suffer irreparable harm if the TRO and preliminary injunction
are not granted; the harm to Brewvies outweighs any possible harm to the defendants; and the
public interest favors granting the TRO and the preliminary injunction. Brewvies also urges the
Court to grant a permanent injunction against the enforcement of Utah Code section 32B-1-504(7)
as currently enacted. The relevant facts have already been established. The statute is invalid under
the Utah Constitution and the United States Constitution.

128

Ne. Florida Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896
F.2d 1283, 1285 (11th Cir. 1990).
24

Case 2:16-cv-00318-DN Document 6 Filed 04/28/16 Page 33 of 33

DATED this 28th day of April, 2016.

Respectfully submitted,
LEWIS HANSEN
By:

25

/s/ Ross C. Anderson

Ross C. Anderson
Attorney for Plaintiff