Full opinion text
ORDER SILVER, District Judge. This case presents a pre-enforcement challenge to an ordinance passed by Defendant City of Phoenix regulating businesses the ordinance refers to as “live sex businesses.” Phoenix, AZ Code § 23-54 (1998). Pending are a Motion for a Preliminary Injunction filed by Plaintiffs, who are owners and members of businesses in which live sex acts occur (“the clubs”), and a Motion to Dismiss filed by Defendant. FACTUAL BACKGROUND On December 9, 1998, the Phoenix City Council enacted § 23-54 of the Phoenix City Code, which states that “[t]he operation of a business for purposes of providing the opportunity to engage in, or the opportunity to view, live sex acts is declared to be a disorderly house and a public nuisance per se which should be prohibited.” Phoenix, AZ Code § 28-54 (1998). The ordinance allows Defendant to apply to the Municipal Court for an order permitting the City to abate violations of § 28-54, after which a judge is required to hold a hearing on whether the provision has been violated. If the judge concludes that a violation has occurred, Defendant is authorized to close the business. On December 16, 1998, the Phoenix City Council passed an amendment to § 28-54 adding subsection G, which exempted non-obscene performances “of any play, drama, or ballet in any theater, concert hall, fine arts academy, school, institution of higher education, or similar establishment” with certain additional limitations. Phoenix, AZ Code § 23-54 (1998). On January 6, 1999, Plaintiffs applied for a temporary restraining order and preliminary injunction to prevent the ordinance from becoming effective as scheduled on January 8, 1999. Defendant filed a Motion to Dismiss and Memorandum of Law in Opposition to Plaintiffs Request for Injunctive Relief and on January 7, 1999, the Court denied the application for a temporary restraining order. A hearing for a preliminary injunction was scheduled and held on March 4, 1999. Plaintiff presented the testimony of three witnesses and both parties submitted several exhibits, including deposition testimony by club members and owners. The clubs purport to be private organizations allowing access only to members. The membership application process appears to be similar at all the clubs who are Plaintiffs in this lawsuit. (W. Markus Test, at 65.) Anyone interested in visiting the social clubs arrives at a club, fills out a membership form, pays membership and per visit fees, and is generally permitted to enter the club at that time. Annual membership fees start as low as $1 when business is slow, with the majority ranging from $5 to $10. (R. Reedy Dep. at 7, 12; M. Fend Dep. at 21; W. Markus Dep. at 36-37; F. Magarelli Dep. at 22; R. Van Brunschot Dep. at 27; Brigham Dep. at 9; G. Mutschler Dep. at 43.) Most of the club’s income is derived from the per visit fees, which generally range between $20 and $30 for each visit. (R. Reedy Dep. at 27; W. Markus Dep. at 36-37; G. Mut-schler Dep. at 44.) In several of the clubs, fees for single women are considerably less expensive than for men or couples. (W. Markus Dep. at 37; F. Magarelli Dep. at 26.) Not everyone is permitted to become a member on a given night. The club owner Plaintiffs assert that they refuse entry to applicants who are visibly intoxicated, attempt to introduce drugs into the club, are self-identified prostitutes, have neglected personal hygiene, or are improperly attired. Plaintiffs also claim that prospective applicants must be proponents of the swinging lifestyle, though they acknowledge that their ability to verify such information is limited. (M. Fencl Dep. at 21-22; W. Markus Dep. at 31; W. Brigham Dep. 17.) Membership decisions are generally made by the person working the door on a given night, though on occasion, this person may consult with someone else with respect to a particular applicant. Clubs frequently ask for a name, telephone number, address, birth date, driver’s license or an identification card, though the information is not verified other than by inspecting the license to verify the age of the applicant. (W. Markus Dep. at 39.) Members of law enforcement and reporters are not permitted to enter the clubs unless they are in their individual, rather than official capacities, but this information is not verified. (W. Markus Dep. at 39.) Club owner Plaintiffs assert they exercise some additional control over their clientele; if, for example, someone violates the “no-touch” without consent rule, they may be asked to leave the club. (W. Markus Dep. at 26; M. Fencl Dep. at 22.) Club members may offer suggestions regarding operation of the clubs, but they have no control over the clubs’ management. (F. Magarelli Dep. at 11.) There is no requirement that prospective members be referred by other members or that applicants live in the Phoenix area. In fact, new members may be visitors from other parts of the United States or from other countries such as Europe and Japan. (W. Markus Dep. at 24, 30-31.) The clubs attract clientele by extensive advertising in local newspapers. (W. Markus Dep. at 40, M. Fencl Dep. at 17; F. Magarelli Dep. at 27.) Some clubs also operate websites promoting their businesses. (M. Fencl Dep. at 17; F. Magar-elli Dep. at 51.) This strategy has proven successful; owners of the clubs estimate that they have between 3,000 and 12,000 members. (W. Markus Dep. at 38, estimating Guys and Doll’s membership at 3,000; M. Fencl Dep. at 27, estimating Chameleon’s membership at 12,000; F. Magarelli Dep. at 46, estimating Encounters’ membership at 8,000 or 9,000.) Some club patrons acknowledge that they are members of several different clubs. (R. Reedy Dep. at 6-7; 12-13.) On any given night, member attendance is estimated at several hundred people per club. (W. Brigham Dep. at 19.) The clubs boast dance floors and in some cases, dancing poles and cages available for use by members. They also offer food, non-alcoholic beverages, and activities such as billiards, darts, hot tubs, and erotic videos. In addition, the clubs provide individual rooms, some of which are designed to allow observation of the activities by other patrons, including sexual conduct. Club owners contend that employees of the clubs are prohibited from introducing members for the purpose of having sex, fraternizing with club members while working, or providing any adult entertainment — such as topless dancing, massages, or escort services — to club patrons. Club owners also assert that they do not allow their members to ‘tip’ a member for dancing or performing any acts including sexual acts. According to Plaintiffs, the clubs prohibit drugs, alcohol, prostitution, and solicitation of escorts on the premises. Plaintiffs readily acknowledge that acts of oral sex and sexual intercourse occur regularly at the clubs, though they assert that such acts do not constitute the majority of the activities at the clubs. (W. Mar-kus Dep. at 56; W. Bringham Test, at 43.) According to one club owner, sexual acts constitute ten to twenty per cent of the activity taking place over the course of an evening. (W. Bringham Test, at 43.) Plaintiffs claim that the clubs discourage members from engaging in unprotected sex through the provision of free condoms and the display of notices in the clubs encouraging the use of condoms. They acknowledge,- however, that they merely attempt to motivate patrons to use condoms but do not enforce their use. (W. Markus Dep. at 51.) According to a report on an undercover investigation into some of the Plaintiffs’ clubs written by a member of the Vice Enforcement Unit of the Phoenix Police Department: In the dozen times we have visited [Club Chameleon, Encounters, Discretions, Impressions, and Sociables II], we have observed approximately thirty-five couples engaging in sexual contact. This contact includes sexual intercourse, fellatio, cunnilingus, and self-masturbation. During all of these open sexual acts no condoms were seen by the detectives on any of the males involved. There were several open sexual acts which involved more than one couple. There were not any condoms observed during these encounters. The detectives noticed that the employees would check in the rooms when these sexual acts were being committed and would make no effort to ensure the parties involved used condoms. In several of the clubs condoms were found for sale. However, none of the clubs were found to be distributing free condoms to its customers. (11/13/98 Vasquez Memo at 1, attached to Pis’ Index of Exhibits as Ex. L.) Plaintiffs also assert that they provide clean sheets after every use of the private rooms, that they drain and clean the hot tub if it is clear that it has been used for sexual intercourse, and that they disinfect the couches on a regular basis. According to the Vice Enforcement Unit’s report, however, the cleanliness of the clubs is questionable. The open theaters in the clubs are surrounded by sofas and chairs. These areas are frequently used for some of the described sexual activities. Detectives have observed that after these sexual contacts no employees were seen cleaning any areas in the theater. The private rooms also had some of these problems. After customers used these private rooms, none of the sheets and towels were changed. This as well as the non-use of condoms appears to be a safety concern. The potential exist for unwanted contact with different bodily fluids which include saliva, semen, blood, and fecal matter. (11/13/98 Vasquez Memo at 1, attached to Pis’ Index of Exhibits as Ex. L.) LEGAL STANDARDS To obtain a preliminary injunction, a party must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor. Micro Star v. Formgen, Inc., 154 F.3d 1107, 1109 (9th Cir.1998) (internal quotation omitted). “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases and the probability of success decreases.” Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987) (internal quotation omitted). As an “irreducible minimum,” the moving party must demonstrate a fair chance of success on the merits, or questions serious enough to require litigation. Id. In determining whether a complaint states a claim for which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the Plaintiffs. Yamaguchi v. United States Dept. of the Air Force, 109 F.3d 1475, 1481 (9th Cir.1997); Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1989). A complaint should not be dismissed for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Yamaguchi, 109 F.3d at 1481 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80, (1957)). LEGAL DISCUSSION Standing Defendant asserts that Plaintiffs lack standing to challenge the ordinance because they have failed to establish: “(1) a threatened or actual distinct and palpable injury to the plaintiff; (2) a fairly traceable causal connection between the injury and the defendant’s challenged conduct; and (3) a substantial likelihood that the requested relief will redress or prevent the injury.” Wedges and Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 61 (9th Cir.1994). According to Defendant, Plaintiffs must admit that they operate in violation of § 23-54, which they have not done, before standing exists to challenge the ordinance. Defendant also argues that litigants generally only have standing to vindicate their own constitutional rights and that the exception for laws that may implicate constitutionally protected speech of third parties does not apply because the ordinance does not burden protected speech. As Plaintiffs note, however, to fulfill the “actual injury” standing requirement, they need only show a “ ‘reasonable threat of prosecution for conduct allegedly protected by the Constitution.’ ” Ripplinger v. Collins, 868 F.2d 1043, 1047 (9th Cir.1989) (citations omitted). They, have clearly met this burden because, as Defendant’s counsel acknowledged at the hearing on the temporary restraining order, “[w]hat [Defendant] did just recently was in response to ... hav[ing] six, seven or eight of these businesses operating in the City of Phoenix, was draft something specifically directed at the conduct which occurs in [the businesses].” (Trans, of TRO Hearing, attached to Pis’ Resp. as Ex. A.) As these comments make clear, the ordinance was carefully drafted to target the conduct allegedly occurring at the clubs. If the ordinance is enforced against Plaintiffs, the owners and members could suffer economic injury based on lost profits and the lost value of their membership dues. More importantly, if the conduct alleged by Plaintiffs to be expressive conduct is found to be protected by the First Amendment, enforcement of the ordinance may infringe their First Amendment rights. As the Supreme Court has recognized, pre-enforcement challenges to laws may be particularly appropriate in the First Amendment context, where the threat of enforcement could have a chilling effect on speech even if the statute is never enforced. Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 391, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (noting that “the alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution”). Given Defendant’s eagerness to enact an ordinance directed at sexual conduct allegedly occurring within the clubs and the consequent high likelihood of enforcement, Plaintiffs have standing to challenge the ordinance. The Hardships Plaintiffs claim that they will suffer irreparable harm if the Court does not grant a preliminary injunction. They assert that if the clubs are forced to close, the First Amendment rights of the club members will be infringed and that the deprivation of such rights, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir.1983). Plaintiffs also claim that the if the ordinance is not enjoined, the clubs would be subject to forcible closure, causing the owners to lose business and the members’ annual memberships to be rendered worthless. According to Plaintiffs, Defendant will suffer no harm if the ordinance is enjoined. Plaintiffs assert that though the ordinance states that a business falling within the definition of a “live sex act business” is “a public nuisance per se ” and is “inimical to the health, safety, general welfare and morals,” the only specific justification for the ordinance is to stop the spread of sexually transmitted diseases. Phoenix, AZ Code § 23-54 (1998). Plaintiffs maintain that because there was' no evidence that the clubs are any more responsible for the spread of sexually transmitted diseases than “bars, nights clubs, singles clubs, or church socials,” Defendant cannot establish harm from injunction of the ordinance. Right To Privacy Plaintiffs assert that § 23-54 violates their right to privacy protected by the Fourteenth Amendment’s Due Process Clause. The Ninth Circuit has noted, “[t]he Supreme Court has not defined the outer limits of the right of privacy, but has extended the right to cases involving personal decisions about marriage, procreation, contraception, family relationships, child rearing and education, and abortion.” Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir.1987); see, e.g.; Carey v. Population Servs. Int’l, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (abortion); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (same); Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (contraception). Plaintiffs concede that the Supreme Court has not concluded that the right to privacy protects the sexual activities of consenting adults in all situations. (Pis’ Supp.Mem. at 17.) In Bowers v. Hardwick, 478 U.S. 186, 191, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), for instance, the Supreme Court rejected the notion that its privacy jurisprudence “stand[s] for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscriptions[.]” Moreover, the Supreme Court has specifically “declined to equate the privacy of the home ... with a ‘zone’ of ‘privacy’ that follows a distributor or a consumer ... wherever he goes.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-67, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); see also, Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1248 (9th Cir.1982) (noting that “we decline to hold that the ‘right’ to unobserved masturbation in a public theater is ‘fundamental’ or ‘implicit in the concept of ordered liberty’ ”). Plaintiffs attempt to distinguish cases such as Paris Adult Theatre by arguing that the clubs are private membership organizations which members consider to be “extensions of the home” and therefore protected by the Fourteenth Amendment’s right to privacy. (West Aff. at ¶ 5; R. Brunschot Aff. at ¶ 13; W. Markus Aff. at ¶ 13.) Courts have applied a variety of factors to determine whether an organization is a private membership organization, including the selectivity of membership, membership control over the operations of the establishment, the history of the organization, the use of facilities by non-members, the purpose of the club’s existence, whether the club advertises for new members, whether the club is profit or non-profit, and whether the club uses formalities such as bylaws, meetings, and membership cards. United States v. Lansdowne Swim Club, 713 F.Supp. 785, 796-97 (E.D.Pa.1989); Welsh v. Boy Scouts of America, 993 F.2d 1267, 1276 (7th Cir.1993); Hendricks v. Commonwealth, 865 S.W.2d 332 (Ky.1993) (applying these factors in concluding that a membership organization offering nude dancing was not a private club). The case law provides that the most important of these factors is membership selectivity. Welsh, 993 F.2d at 1276; Brounstein v. American Cat Fanciers Assoc., 839 F.Supp. 1100, 1106 (D.N.J.1993) (noting that “[t]he touchstone of the determination of whether a membership organization is a ‘place of public accommodation’ is its selectivity in the admission of its members”); Lansdowne Swim Club, 713 F.Supp. at 797 (same); Brown v. Loudoun Golf & Country Club, 573 F.Supp. 399, 403 (E.D.Va.1983) (noting that “[t]he key factor is whether the club’s membership is truly selective”). The degree of selectivity of a membership process is measured, in part, on factors such as the substantiality of the membership fee, members’ control over the selection of new members, the numerical limit on club membership, the formality of the club’s admission procedures, the criteria for admission, and the number of prospective applicants denied membership. Lansdowne Swim Club, 713 F.Supp. at 797. In organizations in which the membership selection process is rigorous and restrictive, courts have found the entities to be private, rather than public. In Kiwanis Int’l v. Ridgewood Kiwanis Club, 806 F.2d 468 (3rd Cir.1986), for instance, the Third Circuit considered whether a local chapter of the Kiwanis Club, which had restricted its membership to men, was a place of public accommodation within the meaning of state anti-discrimination laws. The Third Circuit noted that the club consisted of only twenty-eight members, ten of whom had been members for over twenty years. Id. at 475. The Third Circuit also noted that the club had admitted no more than twenty members over the course of the past decade. Id. Each new member had to be sponsored by a current member and formally approved by vote of the club’s board of directors. Id. Concluding that the club had not “opened its membership rolls to the ‘community at large,’ ” the Third Circuit held that the club was not a place of public accommodation. Id. In organizations in which the membership selection process is deemed insufficiently selective, courts have rejected the organization’s self-characterization as a private club. In Lansdowne Swim Club, the federal district court of the Eastern District of Pennsylvania painstakingly scrutinized the membership criteria for an allegedly private swimming club and concluded that its membership selection process did not transform the organization into a private club. 713 F.Supp. at 805. The court reached this conclusion despite the fact that the organization “requires substantial membership fees, places a limit [of 500] on the number of shareholder members, and utilizes a formal admission procedure that has been controlled by the shareholder members since 1978” — restrictions that are significantly absent in the instant ease. Id. at 800-801. Instead, the court focused on “[t]he Club’s interview of potential members [as] not probing and, moreover, providing] no information to voting members that is useful in making an informed decision as to whether the applicant and his or her family would be compatible with- the existing members.” Id. at 800. In addition, the court noted, “[a] process whereby ‘the members ... decide for themselves on whatever grounds they deem suitable whether or not they wish to associate with the applicant’ is a process that has no purpose or plan of exclusiveness.” Id. at 801 (citations omitted); see also, Brounstein, 839 F.Supp. at 1106 (concluding that a membership organization that is “open to any. person eiglu teen years of age or older, who is interested in cats ... upon making application for membership ...” was not a private membership organization). In the instant case, the degree of selectivity of membership by the clubs falls far short of the selectivity of membership in Kiwanis Iwt’l. The clubs advertise in newspapers and operate websites promoting their' establishments. They clearly make the lion’s share of their income from per visit usage fees, rather than membership dues, which, in some cases, is as low as $1 for an annual membership. There appears to be no numerical or geographical limit on membership, and clubs have as many as 12,000 members, including travelers from as far away as Europe and Japan. While some patrons on a given night may know each other, many are complete strangers. Membership criteria is virtually non-existent. An individual wishing to attend a social club simply arrives at the club, provides the club with his or her name, address, age, and minimal other information, pays a small fee, and is generally immediately given a membership card. Members exercise no control over the selection of other members; prospective applicants are generally refused entry only if they are visibly intoxicated, act inappropriately, are dressed poorly, carry visible weapons, or are self-identified on-duty prostitutes, reporters, or law enforcement officials. As one club owner stated, in order to be approved as a member, an applicant must simply “[b]e an upstanding person, look decent, not a bum, be aware that it is a private membership club.” (G. Mutsehler Dep. at 9.) Once applicants have been allowed to join the clubs, they may be asked to leave if they violate a club rule, by, for instance, touching another member without his or her consent. It is difficult to discern how these selection criteria differ from those used by public nightclubs, where bouncers select those standing in line who are suitably attired, or from virtually all public establishments, where those who are visibly intoxicated or otherwise labeled troublemakers are often refused entry or asked to leave. Finally, the clubs are for-profit organizations in which members have no control over the management of the club aside from their ability to make suggestions. In sum, the membership status of the clubs is more fiction than reality. It is clear that the clubs are no more private than those in other cases in which courts have rejected the self-characterization of entities as private membership organizations. See, e.g., 31 West 21st Street Associates v. Evening of the Unusual, Inc., 125 Misc.2d 661, 480 N.Y.S.2d 816, 829 (1984) (finding that a self-proclaimed private membership organization, which advertised in local newspapers and had no real criteria for membership aside from the fact that the applicant “appears at the front door of [the club] and pays the entrance fee[,]” was not a private club); Hendricks v. Commonwealth, 865 S.W.2d 332, 334-35 (Ky.1993) (concluding that a nude dancing club, which had no numerical limit on membership, minimal membership fees, no formalities to the admission of new members, no selection criteria, and no membership control over new member selection was not a private membership club). The Court finds that the clubs in the instant case are not private membership organizations. Accordingly, Plaintiffs’ privacy claim cannot form the basis for enjoining the ordinance. Overbreadth As mentioned above, the Supreme Court has relaxed standing requirements in the First Amendment context, allowing plaintiffs to bring facial challenges to statutes in some circumstances. According to the overbreadth doctrine, “an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face ‘because it also threatens others not before the court— those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.’ ” Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987) (citation omitted). However, standing to bring a facial overbreadth claim is limited. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This is particularly true “where conduct and not merely speech is involved, [in which case, the Court] believe[s] that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. In rejecting a facial over-breadth challenge to an ordinance that prohibited sitting or lying on sidewalks in commercial areas during certain hours, the Ninth Circuit stated: The fact that sitting can possibly be expressive ... isn’t enough to sustain plaintiffs’ facial challenge to the ... ordinance. It’s true that our ordinary reluctance to entertain facial challenges is somewhat diminished in the First Amendment context. However ... [Consistent with [its] speech-protective purpose, the Supreme Court has entertained facial freedom-of-expression challenges only against statutes that, ‘by their terms,’ sought to regulate ‘spoken words,’ or patently ‘expressive or communicative conduct’ such as picketing or handbilling. Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir.1996) (citations omitted). Additional examples of conduct which the Ninth Circuit has identified as constituting “patently ‘expressive communicative conduct’ ” include placing symbols such as Nazi swastikas on public or private property, making political contributions, and engaging in topless barroom dancing. Id. at 303, 304 n. 6. The Ninth Circuit has made clear that the possibility that expressive conduct may be indirectly burdened by a statute is an insufficient basis for a facial overbreadth claim, noting that “a facial freedom of speech attack must fail unless, at a minimum, the challenged statute ‘is directed narrowly and specifically at expression or conduct commonly associated with expression.’ ” Id. at 305 (emphasis added). Thus, ordinances prohibiting' all “barroom type topless dancing” or all live entertainment within a large geographic area have been successfully challenged on overbreadth grounds. BSA, Inc. v. King County, 804 F.2d 1104, 1106, 1109-10 (9th Cir.1986); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 74 n. 15, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Butin cases in which, “although hypothetical examples in which [an ordinance] may be overbroad can be imagined, these examples, in comparison to its legitimate sweep, are not substantial,” overbreadth challenges have failed. J & B Entertainment, Inc. v. City of Jackson, Mississippi, 152 F.3d 362, 366-67 (5th Cir.1998) (concluding that a prohibition on public nudity was not over-broad even if it hypothetically prohibited public breast feeding because breast feeding was not protected by the First Amendment); Roulette, 97 F.3d at 305. In order to succeed with a facial overbreadth challenge, there must be “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court[.]” City Council v. Taxpayers, 466 U.S. 789, 798-99, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). As the Supreme Court has noted, a finding of overbreadth is “strong medicine” to be used “sparingly arid only as a last resort.” Broadrick, 413 U.S. at 613, 93 S.Ct. 2908. Defendant argues that any constitutional infirmities in the initial draft of § 23-54 were cured by the amendment, enacted on December 16, 1998, one week after the enactment of § 23-54, which states: Nothing in this section shall be construed to apply to the non-obscene presentation, showing, or performance of any play, drama, or ballet in any theater, concert hall, fine arts academy, school, institution of higher education, or similar establishment as a form of expression of opinion or communication of ideas or information, as differentiated from the promotion or exploitation of sex for the purpose of advancing the economic welfare of a commercial business enterprise. Phoenix, AZ Code § 23-54 (1998). Plaintiffs respond by reciting a litany of hypo-theticals which they argue would fall under the sweep of the ordinance, rendering it impermissibly overbroad. Some of Plaintiffs hypotheticals strain the imagination; no court is likely to agree with Plaintiffs’ assertion that “a church singles group in which members are to bring a ‘pot luck’ food item is arguably a ‘live sex business’ if two members engage in ‘sexual contact’ following a meeting since they have paid a ‘consideration.’ ” (Pis’ Mem. at 45.) Nor is it realistic to conclude that “a hospital or doctor’s office which demonstrates breast feeding or testing for breast cancer to an individual or a group” will alter its presentations in fear of prosecution as a live sex act business under the ordinance. (Id.) Unrealistic hypothetical aside, Plaintiffs are correct in noting that the ordinance arguably implicates some protected conduct, even in its amended form. The amendment specifically limits the type of performances exempted from the ordinance’s scope to “playfs], drama[s], or ballet[s.]” Phoenix, AZ Code § 23-54 (1998). Thus, non-obscene erotic dance performances and other non-obscene performances that are not plays, dramas, or ballets are covered by the provision and potentially prohibited. The ordinance defines “sexual contact,” which is included in the definition of a live sex act, as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus, or female breast, by any part of the body or by any object or causing a person to engage in such contact.” Id. Although the Court is unfamiliar with the range of conduct included in erotic dance performances, it is conceivable that some dancers may engage in non-obscene conduct included in the definition of sexual contact as part of a performance. If so, the ordinance could conceivably implicate a constitutionally protected right to engage in such expressive conduct. Barnes, 501 U.S. at 566, 111 S.Ct. 2456 (noting that “nude dancing ... is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so”). Such a scenario, while conceivable, is insufficient to invalidate the ordinance on overbreadth grounds. For a facial over-breadth claim to succeed where, as here, conduct, rather than mere speech is involved, “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to its plainly legitimate sweep.” Broadrick, 413 U.S. at 616, 93 S.Ct. 2908. As the Supreme Court has noted, “the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Although a statute that, “by its terms” was “directed narrowly and specifically” at performances of non-obscene erotic dancing would be unconstitutionally overbroad, the ordinance at issue does not suffer from such an infirmity. It does not even mention dancing. Moreover, in its findings, § 23-54 makes clear that the focus is on live sex act businesses which contribute to the spread of sexually transmitted diseases, a concern not present in establishments limited to erotic dancing. Accordingly, the statute is not unconstitutionally overbroad. See also, Farkas v. Miller, 151 F.3d 900, 905 (8th Cir.1998) (noting that an amendment to a public nudity law similar to the one in the instant case saves the statute from being overbroad). “[Wjhat-ever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, as-sertedly, may not be applied.” Broadrick, 413 U.S. at 616, 93 S.Ct. 2908. As the Fifth Circuit noted in response to hypothetical overbreadth arguments, “[i]f John Grisham reads one of his novels in the nude or the New Stage Theatre stages a production of ‘Hair,’ courts can evaluate whether these activities fall within the scope of the exception [to the statute].” J & B Entertainment, Inc., 152 F.3d at 367. Therefore, Defendant’s Motion to Dismiss is granted with respect to Plaintiffs’ over-breadth challenge. Vagueness Plaintiffs also assert that the ordinance is impermissibly vague in violation of the Due Process Clause of the Fourteenth Amendment. “[E]ven if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests.” City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 1857, 144 L.Ed.2d 67 (1999). In order to survive a vagueness challenge, a law must also “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 38 L.Ed.2d 222 (1972). Laws with civil penalties are scrutinized less stringently than laws with criminal penalties, though if they potentially interfere with First Amendment rights, “a more stringent vagueness test should apply.” Village of Hoffman Estates, et al. v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). However, “due process does not require ‘impossible standards’ of clarity.” Kolender v. Lawson, 461 U.S. 352, 361, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citation omitted). “Condemned to the use of words, we can never expect mathematical certainty from our language.” Grayned, 408 U.S. at 110, 92 S.Ct. 2294. Plaintiffs claim that § 23-54 is unconstitutionally vague facially and as applied to their conduct. If an enactment implicates no constitutionally protected conduct, a facial vagueness challenge will fail unless “the enactment is impermissibly vague in all of its applications.” Hoffman, 455 U.S. at 495, 102 S.Ct. 1186; IDK, Inc. v. Clark County, 836 F.2d 1185, 1198 (9th Cir.1988) (noting that “[t]he absence of a significant first amendment interest is ... fatal to a facial challenge of a business regulation for vagueness unless the regulation is vague in all possible applications”). “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman, 455 U.S. at 495, 102 S.Ct. 1186. To prevail on an as applied vagueness challenge, Plaintiffs must establish that the club owner and member Plaintiffs can not understand the meaning of the ordinance sufficiently to determine how to conform their behavior to it. Plaintiffs meticulously dissect the ordinance, claiming numerous terms are undefined and ambiguous. They argue, for instance, that “the term ‘act’ ... is wholly undefined!,]” making it impossible to determine if it is “limited to the type of regularly performed ‘acts’ by paid performers such as a Vaudville ‘act’ or [if] it include[s] within its sweep an ‘act’ between a husband and wife in a private room?” (Pis’ Mem. at 26.) Plaintiffs also assert that the terms “consideration,” “live,” “conduct,” “fondling,” “similar establishment,” “performance,” and “non-obscene performance,” among others, are undefined. As Defendant notes, however, the terms challenged by Plaintiffs as vague are either clear or are clarified when considered in context of § 23-54, other applicable ordinances, and common sense. For example, while the term “act” may not be independently defined in the statute, “live sex act” is plainly defined as “any act whereby one or more persons engage in a live performance or live conduct which contains sexual contact, oral sexual contact, or sexual intercourse.” Phoenix, AZ Code § 23-54 (1998) (emphasis added). “Sexual contact,” “oral sexual contact,” and “sexual intercourse” are defined elsewhere in the statute. Id. Because the ordinance extends to “live conduct” in addition to “live performance^]” it is clear that it is not limited to performances. In addition, though Plaintiffs assert that the location of the word “consideration” in the ordinance makes it unclear whether consideration is the payment to enter a business or the payment to a person in exchange for sexual contact with that person, (Pis’ Mem. at 29), the definition of “consideration” elsewhere in § 23-54 makes it clear that the term refers to entrance or membership fees paid to the business. Finally, though Plaintiffs assert that the ordinance’s definition of a live sex business could include hotels and apartment complexes, a person of reasonable intelligence reading the ordinance would conclude that such establishments are not covered. Courts are permitted to examine the “ ‘particular context’ ” in which legislation was enacted in order to determine if it is impermissibly vague. Grayned, 408 U.S. at 112, 92 S.Ct. 2294 (concluding that a statute was not unconstitutionally vague in part, because “it was written specifically for the school context”). The record is lacking any indication that the ordinance was intended to apply to hotels and apartment complexes, which establishments’ primary purpose is not to provide a place to engage in sexual acts. In contrast, Plaintiffs’ advertisements indicate that the primary lure of the clubs is to furnish patrons an opportunity to engage in or view live sexual acts. Moreover, many of the terms or comparable terms used in the ordinance have withstood vagueness challenges or were taken from existing legislation. The definition of “sexual contact,” for instance, was taken from an Arizona criminal statute, A.R.S. § 13-1401(2). The reference to “non-obscene” performances is supplemented by the Arizona obscenity statute, A.R.S. § 13-3501, which extensively defines obscenity adopting, virtually verbatim, the Supreme Court’s requirements for obscenity regulations set forth in Miller v. California, 413 U.S. 15, 23-24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); see also, IDK, Inc., 836 F.2d at 1198 (holding that a statute prohibiting escort services from operating in a “sexually oriented” manner or advertising in a manner that suggests to a “reasonable, prudent person that sexual stimulation or sexual gratification” will be provided was not unconstitutionally vague); Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057-58 (9th Cir.1986) (finding that a statute prohibiting erotic dancers from “caressing” and “fondling” patrons was not impermissibly vague); Farkas, 151 F.3d at 905 (finding that “persons of ordinary intelligence would not be confused as to the coverage of a statute’s ‘theater’ exception, or to the meaning of the terms ‘simulated sex act,’ ‘public performance,’ or ‘allows or permits’ ”); Dodger’s Bar & Grill v. Johnson Cty. Bd. of Com’rs, 32 F.3d 1436, 1444-45 (10th Cir.1994) (holding that a statute prohibiting acts simulating sexual intercourse and caressing and fondling the breast and buttocks was not unconstitutionally vague). Additionally, in Stansberry v. Holmes, 613 F.2d 1285, 1290 (5th Cir.1980), the Fifth Circuit found that use of examples of “sexually oriented commercial enterprise[s]” followed by the phrase “any other similar establishment,” included in the instant ordinance, made the legislation less vague than it might otherwise have been. In holding that the legislation was sufficiently definite, the court noted: Additional definiteness is provided by the fact that the section specifically lists three types of regulated businesses— massage parlors, nude studios, and love parlors — and applies the definition to “any other similar commercial enterprise.” We find that this definition is sufficiently clear and provides adequate warning of the proscribed conduct. Id. (emphasis added); U.S. v. Lacy, 119 F.3d 742, 748 (9th Cir.1997) (noting two principles of statutory interpretation: “ ‘that a word is understood by the associated words’ ” and “ ‘that a general term following more specific terms means that the things embraced in the general term are of the same kind as those denoted by the specific terms’ ”) (citation omitted). As the Supreme Court has noted, “[i]t will always be true that the fertile legal ‘imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question.’ ” Grayned, 408 U.S. at 110 n. 15, 92 S.Ct. 2294 (citation omitted). Plaintiffs have engaged in such creative thinking, but the Court is unconvinced that a person of ordinary intelligence would not be able to determine how to conform his or her conduct to the ordinance. Accordingly, Plaintiffs’ vagueness challenge is without merit and will be dismissed. Freedom of Expression Plaintiffs’ primary claim is that the conduct that occurs within the social clubs constitutes expression protected by the First Amendment and that the ordinance’s attempt to regulate it is constitutionally infirm. Plaintiffs bear the burden of establishing that the First Amendment is implicated by § 23-54. Las Vegas Nightlife, Inc. v. Clark County, Nevada, 38 F.3d 1100, 1102 (9th Cir.1994) The Supreme Court has recognized that conduct with an expressive component may be entitled to First Amendment protection. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). However, the Court has specifically rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Id. at 376, 88 S.Ct. 1673. In Spence v. State of Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), a case heavily relied on by Plaintiffs, the Supreme Court set forth the test for determining when conduct constitutes expression protected by the First Amendment. The Court considered whether a college student’s inverted display in his window of a privately owned United States flag with a peace symbol affixed to it was constitutionally protected activity. Id. at 408, 94 S.Ct. 2727. The student testified that his actions expressed his belief that “ ‘America stood for peace[,]’ ” a view that was particularly significant in light of the recent shootings at Kent State and the United States invasion of Cambodia. Id. Given the political context in which the conduct occurred, the Court concluded that “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-411, 94 S.Ct. 2727. The Court concluded that the conduct constituted protected expression because “it would have been difficult for the great majority of citizens to miss the drift of appellant’s point at the time that he made it.” Id. at 410, 94 S.Ct. 2727. Courts have extended constitutional protection to a variety of forms of symbolic conduct expressing political or other ideas. Clark v. Community For Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (sleeping in a park adjacent to the White House as part of a demonstration against homelessness); O’Brien, 391 U.S. at 376, 88 S.Ct. 1673 (burning one’s draft card); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black armbands). However, the Supreme Court has also emphasized that the First Amendment protection afforded to conduct in general has its limits. In Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989), the Court rejected a First Amendment challenge to an ordinance that restricted dance halls to teenagers of a particular age group. As the Court concluded: ‘freedom of speech’ means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. Id. Plaintiffs argue that by engaging in sexual acts, members are expressing “a message of social and sexual liberation to other members of the Club as well as a message of love, trust, and honesty in their relationship to each other and to other members of the Club[.]” (ACLU Mem. at 3.) Relying primarily on Spence, Plaintiffs argue that club members engaging in sexual activity in the clubs uniformly intend to convey a particularized message and that there is a substantial likelihood the message will be understood by those viewing the activity. 418 U.S. at 410-411, 94 S.Ct. 2727. Several Plaintiffs selected by counsel to offer testimony to the Court recited counsel’s characterization of the message of those engaging in sexual activity in the clubs. Witnesses asserted that by engaging in sexual activities in the clubs, they were expressing their love for and trust in their partners and their belief in a sexually liberated society. (R. Reedy Dep. at 11, 22-23; W. Brigham Test, at 39; M. Fend Dep. at 15; West Dep. at 20.) However, many of the repeated characterizations of sexual conduct as “expression” appear to be the product of scrupulous coaching by Plaintiffs’ counsel. Moreover, not every witness confirmed Plaintiffs’ counsel’s assertion that those engaging in sexual acts intended to convey a particularized message and that the message had a substantial likelihood of being uniformly understood, even by those who viewed the act within the confines of the club. In one deposition, the following exchange took place: Q: Have you ever seen two people have sexual intercourse on the club premises while the club was open to the public? A: Yes. Q: Do you recall if you heard any message coming from them at that time? A: You mean like moaning? Q: That. Anything? A: Sure. Lots of moaning. Q: Did you get any other message coming from— A: They are having a great time. They are enjoying themselves. (J. Van Brunschot Dep. at 18-19.) The member was also asked if he could recall if he received any message from watching couples have sexual intercourse at a social club and he responded: A: I found it very exciting. Q: Could you identify any particular message they would have been sending to you as another patron? A: You know, I really wasn’t thinking about messages. I was thinking about my excitement at the time. (J. Van Brunschot Dep. at 34.) The following exchange took place at the deposition of a club owner Plaintiff who had joined at least one additional club as a member: Q: Focusing now, just on those members that are engaged in some form of sexual activity, can you explain to me what message it is they are sending? A: I think you’d have to ask them what message that they are sending. That would be a question that they would have to give you. Q: Is there any way for someone who is viewing two people having sexual relations to determine the message that that couple may be sending? A: I think the person receiving that message, the way they would receive it would be in a form that they could only explain. I can not say what this person would feel by the message that they would be receiving from watching somebody else having sex or whatever they might be doing. Q: What I’m trying to get at — and I’ll give you .one more chance, what I’m trying to get at is whether or not the person watching is able to ascertain the message which is being sent by the two individuals copulating? A: That would be speculative on my part. Again I can’t state what those people are giving or receiving. (G. Mutsehler Dep. at 12-13.) When asked if there was any way for someone outside of one of the private rooms to determine what message was being sent from someone inside a private room, the owner responded: “I guess you’d have to ask that person that’s on the outside of the room what message they are receiving. I have no idea.” (G. Mutsehler Dep. at 24.) The deposition continued: Q: Can you tell me if you, yourself, send a message of social or sexual liberation to [your partner] at any time? A: I would assume that I’m sending the same message to [my partner] that you might be sending to your wife when you’re having a sexual relationship with her or girlfriend. Q: Do you ever send a message to [your partner] or have you ever sent a message to [her] by having sexual relations with someone other than her? A: Yes- But what that message would have been at that time, I can’t recall. (G. Mutsehler Dep. at 32.) Still later in the deposition, the owner was asked to define the “swinging lifestyle.” He responded as follows: A: A community of people enjoying one another’s company at a private social club or at a private residence. Q: That’s pretty broad, isn’t it? A: Yes. Q: That would include literally every private party held in the [Phoenix area] every weekend night, wouldn’t it? A: That could be a swinging lifestyle of sorts, sure. Again, it’s up to the people what they want to do. Q: I guess what I’m asking you is, if the term is defined that broadly, it most has no meaning because what you’ve told me is that the swinging lifestyle is social gatherings; is it that broad? A: The swinging lifestyle is a social gathering. Q:. But it’s more than that, isn’t it? A: It can be whatever it wants to be. People can do whatever they want to do. If I come to your home and ... my girlfriend and your girlfriend or wife, we go swimming in the pool, we observe you participating in some sort of activity, I could say that’s the swinging lifestyle and neither has an objection to anyone. The swinging lifestyle means many things to many persons. To you folks it means sex clubs. (G. Mutsehler Dep. at 17-18.) Some Plaintiffs assert their beliefs that every act of sexual or oral intercourse is an expressive act conveying the same message when conducted in a social club as it does when conducted in a private hotel room. (W-Markus Dep. at 57; West Dep. at 29.) According to one witness, the message club members communicate is “[t]hat we care about ourselves, that we care about the other people, that we are interested in spending time with them.” (W. Brigham Dep. at 15.) As Plaintiffs’ own testimony reveals, however, the message being sent by those engaging in sexual conduct in the clubs is not a particularized message guaranteed to be consistently interpreted and understood by the “great majority” of those who view it. Spence, 418 U.S. at 410, 94 S.Ct. 2727. Although some Plaintiffs claim to express a view of a sexually liberated society, others stated that it was impossible to determine the message being sent and that the message varied depending on who interpreted it. (G. Mutschler Dep. at 33, noting that “[ijt’s really up to you what message you would receive by being at the club.”) Still other Plaintiffs admitted that the message they intended to convey by engaging in sexual conduct or that they interpreted by viewing it was one of sexual arousal or enjoyment. Significantly, the testimony is not from randomly selected patrons who might have visited the club only once out of curiosity, but from Plaintiffs after consultation with counsel and initiation of this lawsuit. Although expressions of sexual arousal and enjoyment may be a communication of a sort, they are not, without more, entitled to constitutional protection. Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1248 (9th Cir.1982) (noting that “[w]hile we certainly agree with [an adult theater owner] that its customers have a constitutional right to view its films, we cannot agree that the interest in simultaneously engaging in sexual activity is similarly protected.”) Although erotic dancing is protected under the First Amendment, members of the audience have no corresponding First Amendment right to touch a nude dancer or be touched by a nude dancer. Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th Cir.1995). Certainly, an observer’s act of touching a nude dancer may be substantially likely to be understood by those viewing it as an indication that the individual was sexually attracted to the dancer and enjoying the performance. However, as the Fifth Circuit recently noted: intentional contact between a nude dancer and a bar patron is conduct beyond the expressive scope of the dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the physical contact occurs while in the course of protected activity does not bring it within the scope of the First Amendment. Id. Other courts considering the issue of whether sexual acts are entitled to First Amendment Protection have commonly agreed that there is no First Amendment protection for physical sexual conduct. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 224, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Supreme Court considered a First Amendment challenge brought by a variety of sexually oriented businesses, including adult bookstores, video stores, cabarets, motels, and theaters, as well as escort agencies, nude model studios, and “sexual encounter centers.” Although the Supreme Court did not focus on sexual encounter centers or describe the activities alleged to take place within them, the Court summarily dismissed the notion that the centers might be entitled to First Amendment protection. Id. The Court noted that “[although the ordinance applies to some businesses that apparently are not protected by the First Amendment, e.g., escort agencies and sexual encounter centers, it largely targets businesses purveying sexually explicit speech which the city concedes for purposes of these cases are protected by the First Amendment.” Id. (emphasis added). FW/PBS is perhaps a premonition of a Supreme Court decision squarely addressing whether mere sexual contact in a commercial club is prohibited by the First Amendment. See also, Paris Adult Theatre, 413 U.S. at 67, 93 S.Ct. 2628 (noting that “[c]onduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a ‘live’ theater stage, any more than a ‘live’ performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue”). In analyzing a First Amendment challenge brought by a publisher of magazines devoted to the swingers lifestyle, the Sixth Circuit recently noted, “the First Amendment also would not protect the right to engage in the depicted sexual conduct publicly under the theory that the sexual act itself constitutes protected expression.” Connection Distributing Co. v. Reno, 154 F.3d 281, 289 n. 8 (6th Cir.1998). Similarly, in People v. Morone, 150 Cal.App.3d Supp. 18, 198 Cal.Rptr. 316, 317-18 (Ct.Super.1983), a California appeals court rejected an argument that sexual conduct as part of the swinging lifestyle was protected by the First Amendment. In affirming the criminal convictions of the owners of a health club in which sexual conduct occurred, the court held that “[t]he First Amendment, which protects both the freedom of speech and the freedom of association, does not embrace purely physical activity. ‘Swinging,’ which is a ‘free heterosexual activity,’ therefore does not per se qualify for First Amendment protection.” Id. (citations omitted). The court concluded that “[t]o hold otherwise would require us to adopt the already discredited ‘view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.’ ” (Id.) (quoting O’Brien, 391 U.S. at 376, 88 S.Ct. 1673). This Court concludes that sexual conduct as it is defined in § 23-54 does not constitute expression within the meaning of the First Amendment. The conclusion that the sexual acts themselves do not merit constitutional protection does not end the inquiry. Although the advertisements for Plaintiffs’ clubs suggest that sexual activity is the primary attraction, Plaintiffs have testified that the clubs perpetuate a social philosophy of untrammeled sexual contact between consenting adults and provide members a place where they can engage in discussion of the swinging lifestyle and observe and participate in erotic dancing. As noted above, the Supreme Court has held that nude or partially nude dancing performances are “marginally” protected by the First Amendment. Barnes, 501 U.S. at 566, 111 S.Ct. 2456. However, the Supreme Court has also made clear that dancing which is not part of a performance warrants no First Amendment protection. Id. at 581, 111 S.Ct. 2456 (Souter, J. concurring) (noting that while not all dancing is entitled to First Amendment protection, “dancing as a performance directed to an actual or hypothetical audience” does warrant constitutional protection). Thus, to the extent that the dancing that takes place within the clubs is recreational rather than part of a performance, it warrants no First Amendment protection. Dallas, 490 U.S. at 24, 109 S.Ct. 1591 (holding that merely “coming together to engage in recreational dancing” is not protected by the First Amendment). However, because Plaintiffs have testified that the clubs offer cage dancing, dancing poles, and striptease dance contests and that patrons come to the clubs, in part, to watch others dance, the Court assumes some of the dancing in question constitutes “marginally” constitutionally protected expressive conduct. Barnes, 501 U.S. at 566, 111 S.Ct. 2456. Similarly, though Plaintiffs’ advertisements make no mention of the clubs as a forum for discussion of social philosophies, the Court will assume because of some of Plaintiffs’ testimony that certain patrons do discuss opinions of a sexually liberated society at the clubs and that these conversations are entitled to First Amendment protection. The Supreme Court has applied First Amendment scrutiny to enactments “regulating conduct which has the incidental effect of burdening