Volume 2006, Issue 10

CLICK HERE FOR ONLINE DAILY NEWS AND CASE UPDATES

ITEMS OF SPECIAL INTEREST

Pornography Harms Our Relationships
The Independent Alligator, Gerald Liles, 10.23.2006

Text This: Words Alone Can Violate Federal Obscenity Laws
Law.com, Howard Bashman, 10.9.2006

Sex Trafficking: You Mi was a Typical College Student, Until Her First Credit Card Got Her Into Trouble
San Francisco Chronicle, Meredith May, 10.8.2006

Sex Trafficking: San Francisco Is A Major Center For International Crime Networks That Smuggle And Enslave
San Francisco Chronicle, Meredith May, 10.6.2006

CASES

Sensations, Inc. v. City of Grand Rapids, No. 1:06 CV 300 (S.D. Mich. Oct. 22, 2006)
Where the City ordinance is supported by prior court holdings on identical supporting facts to support identical restrictions previously approved by those courts, to permit Plaintiffs to challenge those findings and apply the burden-shifting analysis of Alameda Books would directly undermine both the right of municipalities to rely upon the studies and decisions from other jurisdictions and the fundamental rule of stare decisis.

Doctor John's Inc. v. City of Roy, No. 04-4270 (10th Cir. Oct. 10, 2006).
Case is remanded where the lower court's record is unclear whether the ordinance is properly supported as targeting adverse secondary effects.

Andy's Restaurant & Lounge, Inc. v. City of Gary, No. 05-2225, 2287, 2288 (7th Cir. Oct. 11, 2006)
City ordinance regulating sexual oriented businesses is upheld against a litany of constitutional claims.

United States v. Eckhardt, No. 05-12211 (11th Cir. Oct. 4, 2006)
Threatening and vulgar phone calls from a disgruntled employee are properly deemed obscene speech not entitled to First Amendment protection.

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CASES

Sensations, Inc. v. City of Grand Rapids, No. 1:06 CV 300 (S.D. Mich. Oct. 22, 2006)

Where the City ordinance is supported by prior court holdings on identical supporting facts to support identical restrictions previously approved by those courts, to permit Plaintiffs to challenge those findings and apply the burden-shifting analysis of Alameda Books would directly undermine both the right to municipalities to rely upon the studies and decisions from other jurisdictions and the fundamental rule of stare decisis.

On consideration of motions to dismiss by the parties to this action, the court granted the city’s motion to dismiss. Grand Rapids adopted an ordinance regulating sexually oriented businesses. “The Ordinance has four principal restrictive components . . . (1) a prohibition on total nudity; (2) regulations on “semi-nudity” (defined in significant part as female performers wearing pasties and G-string), including a six foot buffer zone between performers and patrons and a no-touch rule; (3) an open-booth rule for adult arcades; and (4) a restriction on the hours of operation between 2:00 a.m. and 7:00 a.m. The ordinance contains a 180-day grace period. . . ” for compliance. Op. at 4.

Detailed the legislative findings support the Ordinance:

The Ordinance adopts and incorporates its findings and legislative record related to adverse secondary effects of sexually oriented businesses, including 32 judicial opinions and a number of supporting reports. The legislative record also includes a series of affidavits by investigator Tim Reilly, recording his observations at numerous sexually oriented businesses, including Little Red Barn and Sensations [the Plaintiffs]. Reilly’s observation include evidence of sexual fluids on the walls and surfaces of closed peep show booth, as well as evidence of sexualized physical contact between patrons and performers at live show settings. The entire legislative record is codified in Section 5.283 of the City Code. Op. at 3.

Suits were brought by two SOBs setting alleging that the ordinance violates the First, Fifth, and Fourteen Amendments and corollary provisions of the Michigan Constitution. The Court further summarized the SOBs’ claims as follows:

Plaintiffs raise a number of challenges under the First Amendment. First, they allege that that the Ordinance acts as a prior restraint on constitutionally protected expression. Second they contend that the Ordinance is not a content-neutral law of general applicability, but instead is an impermissible content-based restriction. Third, they argue that the Ordinance if facially overbroad and unconstitutional vague. Fourth they assert that, even if it is construed as a content-neutral restrictions, the Ordinance fails to meet the test of City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002) and City of Renton v. Playtime Theatres, 475 U.S. 41 (1986), because it is not supported by reasonable evidence of adverse secondary effects and is not narrowly tailored to serve a legitimate governmental interest. Fifth they argued that the Ordinance violates Plaintiffs’ First Amendment right to free association.

The court analyzed the claims pursuant to Renton and Alameda and their progeny. It observed:

Plaintiffs suggest that Alameda Books stands for the proposition that, in every case, a plaintiff may challenge the municipality’s findings of secondary effects, even if that finding previously has been upheld on the same facts by a controlling court. Contrary to Plaintiffs’ interpretation, nothing in Alameda Books supports such a broad conclusion . . . Here in contrast to Alameda Books, the city did not attempt to use a study that supported one conclusion to support a second, somewhat related conclusion. Instead the City relied upon the prior holdings of the Sixth Circuit and the Supreme Court on identical supporting facts to support identical restrictions previously approved by those courts. To permit Plaintiffs to challenge those findings and apply the burden-shifting analysis of Alameda Books to the instant case would directly undermine both the right of municipalities to rely upon the studies and decisions from other jurisdictions and the fundamental rule of stare decisis.

Citing existing precedents, the court proceeded to reject each the claims brought by the sexually oriented businesses.

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Doctor John's Inc. v. City of Roy, No. 04-4270 (10th Cir. Oct. 10, 2006).

Case is remanded where the lower court's record is unclear whether the ordinance is properly supported as targeting adverse secondary effects.

The opinion begins and is summarized by the court as follows:

. . . [Dr. John's] operates stores that sell among other things, a range of adult products. After Dr. John's located a store within its city limits, . . . [Roy City] passed an ordinance subjecting "sexually oriented businesses to certain regulations. Dr. John's challenged this ordinance on a variety of constitutional grounds: the district court rejected them all. We agree with the majority of the district court's rulings, and thus AFFIRM in substantial part. However, one of the issues before the district court was whether the ordinance was properly supported as targeting the untoward "secondary effects" adult businesses are thought to produce. It is unclear from the record what evidence supporting and countering the City's rationale that the ordinance was indeed necessary to prevent these negative effects was presented to, and considered by the district court. We therefore REMAND this case for consideration of that issue.

The opinion discusses burden shifting issues that arise from City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).

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Andy's Restaurant & Lounge, Inc. v. City of Gary, No. 05-2225, 2287, 2288 (7th Cir. Oct. 11, 2006)

City ordinance regulating sexual oriented businesses is upheld against a litany of constitutional claims.

This case involves a challenge by several sexually oriented businesses (SOBs) to Gary, Indiana's ordinance regulating sexually oriented businesses. The ordinance defines "sexually oriented business" broadly to include various types of establishments. It limits hours of operation and physical contact between employees (dancers) and customers. It has open-booth requirements, it regulates furnishings and waste disposal and imposes various obligations on employees such as assuring no sexual activity on the premises. The ordinance also requires all covered businesses to obtain a license and it allows for suspension or revocation of licenses for volations. Denial, suspension, or revocation of a license occurs after a hearing and the ordinance provides a right of appeal. During any appeal, the city is required to issue a provisional license until a final judgment is rendered by a court.

In the instant case, the district court granted summary judgment in favor of the city. On appeal, the SOBs asserted that the ordinance violates Indiana law along with the First Amendment and Fourth Amendments of the United States Constitution. The court of appeals affirmed the district court.

The court of appeals observed that the analysis of the case is controlled by the City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). This line of cases deals with zoning ordinances aimed at dispersing adult entertainments businesses through time, place, and manner restrictions. Another line of Supreme Court cases ordinarily controls the analysis of public indecency statutes. United States v. O'Brien, 391 367 (1968), City of Erie v. Pap's A.M., 529 U.S. 277 (2000). Under both lines of cases, courts resort to an intermediate scrutiny and "for most cases, it may not matter which test is employed." Op. at 5 citing LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 365 (5th Cir. 2002) (the analysis between the two lines of cases may be entirely interchangeable). Although the parties seemed somewhat confused, after clarifying the standards, the Seventh Circuit analyzed the instant case under the Renton line of precedent.

Under Renton, the ordinance receives intermediate scrutiny if it is content neutral (ie. designed to regulate adverse secondary effects from sexually oriented businesses as opposed to the speech itself). The SOBs in this case contended that the ordinance is not content neutral and directly regulates speech, therefore, they argued it should be reviewed under strict scrutiny. To ascertain whether the ordinance is content neutral, courts look to the intent of the enacting legislative body. After reviewing the Ordinance's Preamble and reports and studies relied on by the city, the court of appeals concluded that the ordinance is content neutral and entitled to intermediate scrutiny.

Laws survive intermediate scrutiny review "so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." Op. at 8. "Laws are designed to serve a substantial governmental interest when the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance." Op. at 8. The courts do not require a city to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. Op. 8, 9 citing Renton and Alameda Books. In this case, the court of appeals held that the evidence relied upon by the city is more than adequate to establish the secondary effects being regulated.

The SOBs also argued that the ordinance was overbroad. Rejecting these arguments, the court reviewed several provisions in the ordinance and observed that similar restrictions had been upheld in numerous cases. The SOBs also argued that the Ordinance is invalid because it does not demand prompt judicial review. The Seventh Circuit rejected this contention since the ordinance grants a provisional license during the pendency of any appeals. Under the standard enunciated in City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) that is all that is required. The Seventh Circuit rejected the Fourth Amendment claims and claims brought under Indiana law on grounds that they were waived, because the SOBs did not raise them before the district court.

ADF has played a vital role in several of the U.S. Supreme Court cases that have become landmarks in this area of the law. (e.g., City of Erie, Z.J. Gifts, Alameda Books). These cases demonstrate how the law is impacted incrementally one crucial building block at a time. Z.J. Gifts has effectively insulated municipal licensing ordinances from certain common due process challenges so long as cities offer provisional licenses during the pendency of court review. City of Erie has had a huge impact in enabling cities to regulate public nudity. But, cities should pay close attention to the wording of their ordinances and seek to emulate the restrictions explicitly approved by the U.S. Supreme Court. Alamada Books has also been crucial in the effort to defend SOB ordinances. It reaffirms that cities can rely on studies of other municipalities even when those studies do not address identical factual circumstances. However, in the event of legal challenges, the shifting burdens of proof countenanced in Alameda can become landmines. Preparation for these landmines is key. Municipalities need to be prepared to offer evidence and/or expert testimony to rebut evidentiary challenges presented by SOBs. Well prepared municipalities ordinarily win these challenges. Lack of preparation can cost.

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United States v. Eckhardt, No. 05-12211 (11th Cir. Oct. 4, 2006)

Threatening and vulgar phone calls from a disgruntled employee are properly deemed obscene speech not entitled to First Amendment protection.

Robert Eckhardt worked with a local Teamster's union. After that relationship deteriorated, he made hundreds of threatening phone calls to an office worker at the union which included various forms of sexual vulgarity. He was charged with and convicted of several counts of violating the Communications Decency Act for making "annoying, abusive, harassing, or threatening" telephone calls in violation of 47 U.S.C. § 223(a)(1)(C). On appeal, Eckhardt argued that the section is overbroad and unconstitutionally vague. The court of appeals rejected his overbreadth claim noting that the purpose of his calls was to harass and frighten. Citing Roth v. United States, 354 U.S. 475 (1957), the court of appeals further observed that obscenity is not constitutionally protected speech. It also rejected Eckhardt's vagueness challenge reasoning that the statute in question provides adequate notice of unlawful conduct.

Eckhardt was also convicted of violating 47 U.S.C. § 223(a)(1)(A) which prohibits individuals from using, in interstate communications, a telecommunications device to knowingly make "any comment, request, suggestions, proposal, image, or other communication which is obscene or child pornography with intent to annoy, abuse, threaten, or harass another persons. . . . " Eckhardt argued that his statements were not obscene and they were intended as a protest against the union.

The U.S. Supreme Court has defined obscenity as a work that (1) taken as a whole, appeals to the prurient interest under contemporary community standards, (2) depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15 (1973). Applying this definition, the court of appeals ruled that a rational trier of fact could have found the essential elements of the §223 violations beyond a reasonable doubt and it affirmed the district court.

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