Yes. The Supreme Court has ruled that even "adult bookstores" can be closed if they are proved to be a "public nuisance" in that they are essentially houses of prostitution and meeting places for public sexual contact. Statutes that target for closure businesses that knowingly allow illegal conduct in violation of the law are valid even if the business is allegedly selling First Amendment-protected items. (9.1)
Yes, and a few states have gone that route, although it is never justified because no framers of state constitutions intended to protect sexually explicit speech. However, you must examine the cases construing your state constitutional protection for freedom of speech and privacy to be prepared for any trouble spots. Defense lawyers are raising this issue in virtually every pornography case. (9.2)
In this final chapter, we will discuss closing SOBs as public nuisances, and then touch on various other issues relating to the regulation of SOBs.
Perhaps one of the least used, but most effective methods of attacking SOBs is to use state and local public nuisance laws to close SOBs for a period of time, which sometimes forces the business to close permanently and leave the town.
The United States Supreme Court squarely addressed the
issue of whether public nuisance laws could be used to close an
"adult" bookstore in Arcara v. Cloud Books,
Inc., 478 U.S.
697 (1986). In that case,
The New York Court of Appeals used an O'Brien analysis to hold that the statute incidentally burdened First Amendment speech rights, and that closing it for a year was a much broader remedy, and much more restrictive of speech than necessary to accomplish the statute's purpose of preventing illegal sexual activity in public establishments. 65 N.Y.2d 324 (1985).
The Supreme Court first noted that two other state supreme courts had already upheld such a use of public nuisance laws. 478 U.S. 702, n. 1 Chief Justice Burger then held for the Court that, unlike O'Brien, where the conduct of burning a draft card carried a strong speech component, the conduct of prostitution and public sexual activity in this case had no First Amendment protection, and therefore the First Amendment was not implicated.
As you would expect, an SOB will argue that it can't be closed because it sells material presumptively protected by the First Amendment. The Court saw through this line of reasoning:
If the city imposed closure penalties for demonstrated Fire Code violations or health hazards from inadequate sewage treatment, the First Amendment would not aid the owner of premises who had knowingly allowed such violations to persist.
478
The Court ruled that the severity of the burden on First
Amendment rights was "dubious at best" and "mitigated by the
fact that respondents remain free to sell the same materials at another
location."
One liable for a civil damages award has less money to spend on paid political announcements or to contribute to political causes, yet no one would suggest that such liability gives rise to a valid First Amendment claim.…Similarly, a thief who is sent to prison might complain that his First Amendment right to speak in public places has been infringed because of the confinement, but we have explicitly rejected a prisoner's claim to a prison environment least restrictive of his desire to speak to outsiders.
[W]e conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.... The legislation providing the closure sanction was directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises. The legislature properly sought to protect the environment of the community by directing the sanction at premises knowingly used for lawless activities.
This raises some interesting possibilities for states and municipalities to consider as serious methods of combating SOBs. Virtually every state has some sort of public nuisance law that empowers county or city law enforcement officials to bring an action to close any establishment where owners knowingly allow illegal sexual activity or prostitution to occur.
As was discussed in Chapter 2, the evidence of sexual activity in the typical "peep show" booth is overwhelming. No owner or operator of such an establishment could make a credible argument that he did not know what was occurring in his building, given the fact that he pays someone to clean up the used condoms, semen and other fluids from the walls and floor of the booths.
The state of
SOBs with "peep show" booths are not the only type of SOB subject to regulation as a public nuisance. Obviously, any nude dancing establishment where undercover officers can prove owners and operators knowingly allowed "dancers" to perform acts of prostitution would be prosecutable as a nuisance. Further, in some jurisdictions the act of "lap dancing" -- involving physical, sexual contact between "dancers" and patrons -- is considered lewd conduct which allows municipalities to invoke nuisance laws. Hoskins v. Department of Business Regulation, Div. of Alcoholic Beverages and Tobacco, 592 So.2d 1145 (Fla. Dist. Ct. App. 1992) (lap dancing is lewd.); Michigan ex rel. Wayne County Prosecutor v. Dizzy Duck, 535 N.W.2d 178, 183 (Mich. 1995) (“An almost-nude female employee squirming in the lap of a customer for his sexual arousal is conduct that carries one right up to the line where prostitution begins.”); State ex rel. Miller v. Private Dancer, 613 N.E.2d 1066, 1070 (Ohio Ct. App. 1992) (upholding lower court’s determination that “lap dancing was lewd and tended to incite sensual desire or imagination”); Com., Pennsylvania Liquor Control Bd. v. CIC Investors No. 870, Ltd., 584 A.2d 1094 (Pa. Commw. Ct. 1990) (male lap dancer lewd); State ex rel. Pierotti v. Owens, 1992 WL 62002 (Tenn.App. 1992) ("table/couch dances” that involve fondling and other sexual contact that owners and operators are aware of and encourage constitute a health hazard, foster breaches of peace, and are a public nuisance).
A strategy of choice in the pornography industry these past few decades has been to avoid the fact that the First Amendment does not protect their interests as much as they would like by attempting to get state courts to interpret state constitutional free speech and privacy provisions in an expansive manner. A few state courts have fallen for this, thus providing greater protection to obscenity and sometimes to businesses that engage in pornographic speech, than is provided by the U.S. Constitution.
The worst example of this is in the state of
Two years later, the court struck down a typical SOB zoning
ordinance in
Fortunately, no other states have followed Oregon and used
the excuse of an obscure state constitutional provision to provide greater
protection from time, place and manner regulations for SOBs
than that provided by the First Amendment, although New York's highest court
did refuse to allow public nuisance laws to be used against an
"adult" bookstore despite Supreme Court approval. People ex rel. Arcara v. Cloud Books, Inc., 503 N.E.2d 492 (N.Y. 1986). [3]
However,
One of the common threats used by SOB lawyers against city or county officials considering time, place and manner regulations -- particularly in smaller communities -- is the threat to sue the city for civil rights violations pursuant to 42 U.S.C. § 1983. Some lawyers go even further, and attempt to intimidate individual city council or county commissioner members by telling them they will be sued and held personally liable for millions of dollars for infringing on the First Amendment rights of the SOB. Under standard laws dealing with legislative immunity, those threats are unwarranted and need not be taken seriously. See e.g., Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 4 (1st Cir. 2000) (legislative immunity extends to local legislators); Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 773 (3rd Cir. 2000) (“Legislators enjoy absolute immunity from liability for their legislative acts.”); San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 476 (9th Cir. 1998) (“Legislators have absolute immunity when they act in their legislative capacities, not in their administrative or executive capacities.”); B Street Commons, Inc. v. Board of County Commissioners of El Paso County, 835 F.Supp. 1266 (D.Colo. 1993) (county commissioners had absolute immunity and qualified immunity from suit arising from their vote to deny permit to nude dancing establishment under ordinance later held unconstitutional on its face; court granted summary judgment to defendants).
While it is possible for a city to owe damages if it unconstitutionally deprives a sex business of its constitutional rights, the burden of proof is high and difficult to meet. “A plaintiff must show actual injury caused by the defendant to recover more than nominal damages.” (emphasis in original) B Street Commons v. Bd. of Co. Commr’s of El Paso County, 835 F.Supp. 1266, 1271. See also Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001); Makin v. Colorado Dept. of Corrections,183 F.3d 1205 (10th Cir. 1999) (“A damages award must be based on actual injuries.”); Gilmere v. City of Atlanta, Ga., 864 F.2d 734 (11th Cir. 1989) (“The focus of any award of damages under § 1983 is to compensate for the actual injuries caused by the particular constitutional deprivation.”); Monroe County, Florida v. U. S. Dept. of Labor, 690 F.2d 1359, 1363 (11th Cir. 1982) (“For a party to recover more than nominal damages for a deprivation of procedural due process, he must show actual compensable injury”).
A city may also enact a regulation prohibiting more than one defined "adult" use in a single building. This type of regulation prohibits a proprietor from avoiding the scatter provisions of an "adult" use zoning ordinance by simply creating a supermarket "adult" use business. It addresses the proprietor who opens an "adult" bookstore, "adult" movie theatre, "peep show" booth use, and massage parlor, all under one roof or in one structure.
The following may serve as language for such a prohibition:
No building, premises, structure or other facility that contains any sexually oriented businesses shall contain any other kind of sexually oriented businesses.
Such provisions pass constitutional muster as reasonable
time, place and manner regulations. Dumas
v. City of
Recently, the Supreme Court upheld a similar ordinance
passed by Los Angeles in City of Los
Angeles v. Alameda Books, Inc.,
122 S.Ct. 1728 (2002).
While the primary aim of an "adult" use zoning ordinance may be to regulate the location and impact of hard-core pornography outlets, many other property uses may be classified as "adult" uses for regulation. Such uses also have harmful secondary consequences for their neighbors. They cause blight, diminution of property values, increase crime, and endanger the public health. These uses include escort agencies, nude model studios, sexual encounter centers, and certain motels or hotels.
Escort agencies, nude model studios, and sexual encounter
centers are subject to regulation and restriction under an "adult"
use zoning ordinance. Such businesses are not entitled to First Amendment
protections. Stansberry v. Holmes,
613 F.2d 1285 (5th Cir. 1980), cert.
denied 449 U.S. 886 (1980); Purple
Onion, Inc. v. Jackson, 511 F.Supp. 1207, 1227
(N.D. Ca. 1981) (nude modeling studios may be pervasively regulated, as they
contain no element of "expression"). A city may lawfully restrict the
location of such establishments. Schope v. State,
647 S.W.2d 675 (Tex.Civ.App. 1982). Escort agencies
have no protection under the First Amendment.
An "adult" use zoning ordinance may also regulate
the location of hotels or motels which are used as houses of prostitution. Such
an ordinance can define for regulation any such place which rents and vacates a
room two or more times within 10 hours. This may create a rebuttable
presumption that the establishment is being used for prostitution activities.
However, it is essential that a city base such a regulation on evidence under
The Supreme Court's holdings on state power to regulate
morality and private consensual activity are probably broad enough to encompass
regulations on "adult" motels. See
Bowers v. Hardwick, 478 U.S.
186 (1987) (no privacy right to consensual homosexual, and arguably,
heterosexual sodomy); Baker v. Wade,
769 F.2d 289 (5th Cir. 1985) (en banc),
cert. denied, 478
A city may restrict the nature of public advertising of
regulated SOBs. Specifically, the ordinance may
restrict the language and pictorial display on outdoor signs advertising the
establishment. See Hamilton Amusement
Center v. Verniero,
716 A.2d 1137 (N.J. 1998) (upholding an ordinance restricting size, number, and
content of SOB ads as content neutral, narrowly tailored, and aimed at
government interests); City of Pasco v.
Rhine, 753 P.2d 993, 997 (Wash.App. 1988) ("We hold the advertising restrictions
placed on the [adult] use involve the same substantial interest of mitigating
the secondary impacts of 'adult' theater location as upheld in Northend and Renton"); SDJ Inc. v. City of Houston,
636 F.Supp. 1359, 1384-85 (S.D.
As with all content neutral restrictions, regulations must
leave open reasonable alternative avenues of communications. In Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir.
2002), the court upheld various restrictions on the outward appearances of
sexually oriented businesses, including regulating on exterior signs. The court
found that the restrictions were “narrowly tailored to combat urban blight and
to prevent a decline in the value of surrounding properties.”
Requirements regarding outside signs and exterior portions
of sexually oriented businesses are valid if they are directed at the signs
themselves rather than at the protected activities. SDJ Inc., 636 F.Supp.
at 1369; Borrago
v. City of
[1]
On
remand, the New York Court of Appeals held that the state constitution's
protection for free speech prevented that use of
[2] To learn more about the status of the law in
[3]