Appeal from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, preliminarily enjoining defendants from prosecuting plaintiffs under Local Law No. 1-1973 of the Town of North Hempstead. Affirmed.
Lumbard, Oakes and Timbers, Circuit Judges. Lumbard, Circuit Judge (dissenting).
This appeal is from the grant of a preliminary injunction by Judge Bartels against the enforcement by the appellants of Local Law No. 1-1973 of the Town of North Hempstead, New York. This ordinance makes it
unlawful for any person conducting, maintaining, or operating a cabaret, bar and/or lounge, dance hall, or discotheque, or any other public place, . . . to suffer or permit any waitress, barmaid, entertainer, or other person who comes in contact with, or appears before, or is likely to come in contact with or appear before persons with breasts uncovered in such a manner that the position of the breast below the top of the areola is not covered with a fully opaque covering [in other words, "topless"], . . . or to appear in any scene, sketch, act or entertainment with breasts or the lower part of the torso uncovered or so thinly draped as to appear uncovered.*fn1
Section 3.0(1), Local Law No. 1-1973, Town of North Hempstead (July 16, 1973). The preliminary injunction was granted at the behest of three different bars, Judge Bartels holding that appellees had sufficiently alleged irreparable harm and that they were likely to succeed on the merits because the ordinance inhibits the full exercise of first amendment freedoms and is overbroad in that "any public place" could include the theater, town hall, opera house, public marketplace, etc., and the ordinance would therefore prohibit performance of a number of works of unquestionable artistic and socially redeeming significance such as the "Ballet Africain," "Hair," and the like.
Appellants argue that the district court should have abstained under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971); Samuels v. Mackell, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764 (1971); Boyle v. Landry, 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758 (1971); Byrne v. Karalexis, 401 U.S. 216, 27 L. Ed. 2d 792, 91 S. Ct. 777 (1971); Perez v. Ledesma, 401 U.S. 82, 27 L. Ed. 2d 701, 91 S. Ct. 674 (1971); Dyson v. Stein, 401 U.S. 200, 27 L. Ed. 2d 781, 91 S. Ct. 769 (1971), and that absent bad faith, harassment or other unusual extenuating circumstances federal injunctive relief should not have been granted. They finally argue that on the merits the ordinance is within local police power and therefore not unconstitutional, with the claimed consequence that preliminary injunctive relief should not have been granted as there is no likelihood of appellees ultimately prevailing on the merits.
We turn to the question whether principles of equity, comity or federalism preclude issuance of a federal injunction restraining enforcement of the North Hempstead ordinance on the basis of its overbreadth pending trial on the merits. To answer this question it is important to understand precisely the situation of the respective appellees at the time the preliminary injunction was sought. The filing of the complaint in this action was instituted immediately after the ordinance became effective. Thereafter an order to show cause why a preliminary injunction should not be granted was signed by Judge Dooling on August 9, 1973. The following day appellee M & L Rest, Inc., which like the other two appellees had covered up its dancers and thereby discontinued topless entertainment, resumed this form of entertainment, and on that day and each of three successive days M & L Rest, Inc., and its dancers were served with criminal summonses for violating the ordinance, a hearing on which was set in the Nassau County Court for September 13, 1973. The preliminary injunction below was granted on September 6, 1973. The other two appellees, Salem Inn, M & L Rest, Inc. and Tim-Rob Bar, Inc., had not resumed topless entertainment prior to the grant of the injunction below. As a result of the ordinance and fear of prosecution thereunder they alleged in their complaint supported by affidavits that the exercise by them and by their dancers of first amendment rights had been chilled and their clientele deprived of the right to view constitutionally protected "expression." They claim, as does M & L Rest, Inc., irreparable injury. In each case as a result of requiring the dancers to wear bikini tops the affidavits contain allegations of "a marked diminution of business" or a "substantial curtailment of our business" which "can result in our having to go out of business." The Tim-Rob Bar alleges that there has been a 50 per cent diminution of business. Again, however, only the M & L Rest, Inc., has had its manager and dancers summoned into court.
Initially, in answer to the question of the propriety of the injunctive relief granted here, we agree with the district court as to the probability of success on the merits. Dancing is a form of expression protected by the first amendment. Even nude dancing in a bar can be within the constitutional protection of free expression. See California v. LaRue, 409 U.S. 109, 118, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972) (Rehnquist, J.).*fn2 To the extent that this expression is constitutionally protected, the Town may not prohibit it. Thus, in California v. LaRue, supra, where the Court upheld a regulation forbidding the sale of liquor by the drink where sexually provocative entertainment was performed, it was said, "the critical fact is that California has not forbidden these performances across the board." Id. It is, however, just such an "across the board" prohibition which Local Law No. 1-1973 enacts. As such the ordinance would have to fall.*fn3 See also P.B.I.C., Inc. v. Byrne, 313 F. Supp. 757 (D. Mass. 1970) (three-judge court), judgment vacated and remanded to consider mootness, 401 U.S. 987, 91 S. Ct. 1222, 28 L. Ed. 2d 526 (1971); Hogge v. Members of City Council, 482 F.2d 575 (4th Cir. 1973), cert. denied sub nom. Joseph v. Blair, 416 U.S. 955, 94 S. Ct. 1968, 40 L. Ed. 2d 305, 42 U.S.L.W. 3593 (1974).
Next, we also agree with this district court as to the irreparable injury facing appellees in the absence of a preliminary injunction. In a most recent decision of this court, 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1159-1160 (2d Cir. N.Y. 1974), we were faced with a nearly identical claim of irreparable injury. What we said there is applicable here. In short, if the ordinance here with its $500 per day fine were enforced against these appellees, they would be required to continue in business without presenting their form of entertainment (thereby involving a potential deprivation of their and the public's first amendment rights).*fn4 In that case, they allege, they would also sustain a "substantial loss of business and threatened bankruptcy."*fn5 Their option -- violating the law to exercise their claimed rights and awaiting prosecution in the New York courts -- involves its own loss of economic and personal rights. Here as in 414 Theater Corp. v. Murphy, supra, there is sufficient irreparable injury indicated to justify at least the temporary injunction.
We are left then with the question of the applicability of the Younger sextet to the preliminary injunction sought here. With respect to appellees Tim-Rob Bar and Salem Inn the Younger question is in exactly the same posture as encountered by this court in the recent decision, 414 Theater Corp. v. Murphy, supra. There too we were faced with a federal action for declaratory and injunctive relief against an overbroad ordinance which was alleged to chill first amendment rights and to cause irreparable harm. There too the district court's grant of preliminary relief was before us for review, challenged on the basis that it violated Younger's teaching. In 414 Theater we affirmed the preliminary injunction, in short because the underlying rationale behind Younger did not apply when state prosecutions were not pending when the federal actions were brought. Id. at 3573-76. See Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209, 39 L. Ed. 2d 505, 42 U.S.L.W. 4357, 4360 (1974); Lake Carriers' Association v. MacMullan, 406 U.S. 498, 509, 32 L. Ed. 2d 257, 92 S. Ct. 1749 (1972). Similarly, we find Younger inapplicable to Tim-Rob Bar and Salem Inn here, and accordingly affirm the preliminary injunctions as to them.
M & L Rest, Inc., poses a slightly different problem. While it is equally true that there was no prosecution pending against M & L when the federal action was begun, nevertheless we are faced now with a pending state prosecution begun only one day after the federal action was initiated. Reading both Younger and Steffel strictly would seem to leave the present situation without a clear decision from the Supreme Court. In Younger the Court stated explicitly, 401 U.S. at 41 (emphasis added),
We express no view about the circumstances under which federal courts may act when there is no prosecution pending in state courts at the time the federal proceeding is begun.
Steffel, moreover, which also speaks only to declaratory judgments, clearly is couched in terms of a fact situation where there is no state prosecution pending at the time of the federal consideration on the merits. On the one hand, it might be argued that considerations of comity and federalism would militate in favor of deferring to the pending state prosecution inasmuch as, according to the rationale of Younger, the state criminal proceeding is perfectly capable of protecting the constitutional rights of M & L. On the other hand are, it appears to us, more substantial considerations in favor of extending federal protection, at least in this case, to M & L, even though it is subject at this time to a pending state prosecution. One of these considerations is equity. Here, M & L, Tim-Rob, and Salem Inn all came equally before the federal court invoking its jurisdiction and protection; to grant relief to two plaintiffs and not the third because of subsequent events largely out of its control would be most inequitable. This is especially true where the result might be contradictory outcomes. Second, there is an element of conservation of judicial energy in treating M & L along with Tim-Rob and Salem Inn. That is to say, there is little or no greater expenditure of effort to determine the merits as to M & L as well as to the other two, and by doing so the federal court will have relieved the state court of the burden of relitigating the identical issue on identical facts. In a federal system such as ours, how a federal court's abstention will increase or decrease the workload of all the courts -- state and federal -- is not an improper consideration. Third, we cannot ignore that lower federal courts are the " ' primary and powerful reliances ...