Oh, the things we litigate in this country...
In Willis v. Town of Marshall, No. 03-2252, 04-1240 (4th Cir. Oct. 7, 2005) (PDF), the Fourth Circuit reversed the dismissal of a civil rights suit brought by a woman alleging that the defendant town unconstitutionally banned her from public dancing.
The Town of Marshall held Friday night concerts and community gatherings at a local community center. Rebecca Willis was banned from the concerts for her "unorthodox dancing style" that involved "gyrating and simulating sexual intercourse with her partner while 'hunch[ed]' on the floor," according to the Town's evidence. As you might imagine, people complained and Ms. Willis was asked not to return.
Willis's complaint alleged (1) that the Town violated her substantive due process rights by permanently banishing her from a public forum; (2) that the Town violated her First Amendment rights of free expression, of association, and to receive information by banning her from the Depot; (3) that the Town deprived Willis of a liberty interest without affording her adequate procedural protections; (4) that the authority upon which the Town relied to banish Willis was unconstitutionally
vague and overbroad; and (5) that the Town denied her equal protection of the law by singling out Willis for banishment. The District Court dismissed all of her claims on summary judgment before allowing discovery.
On appeal, the Fourth Circuit affirmed dismissal of the First Amendment claims, holding that "recreational dancing of the type at issue in this case is not expressive conduct protected by the First Amendment." (Not necessarily because it was lewd, but because it was recreational.) However, with regard to Willis's Equal Protection claim, the Court held that her "allegations of arbitrary singling-out by the Town are sufficient to support a ... 'class of one' claim." The Court found that summary judgment on this claim before discovery was premature because Willis had no opportunity to demonstrate that others situated similarly in this regard were not treated similarly. The Court did note that rational basis scrutiny for the Town's actions would be appropriate because the recreational dancing did not implicate First Amendment rights. So, as long as the Town had a rational basis for singling her out for banishment, it should prevail.
The substantive and procedural due process claims were properly dismissed because the claims fully overlapped her Equal Protection claim.