7th Circuit: Secondary effects rationales supporting regulation of sexually oriented establishments with “live entertainment” might not support regulation of those without such “entertainment”
New Albany DVD, LLC, v. New Albany, No. 05-1286 (7th Cir., Sept. 10, 2009)
7th Circuit: Secondary effects rationales supporting regulation of sexually oriented establishments with “live entertainment” might not support regulation of those without such “entertainment”
The primary issue in this case is whether the usual complement of secondary effects studies used to justify local sexually oriented business ordinances support constitutionally restricting those businesses that sell books and DVDs without offering live entertainment of viewing booths. The plaintiffs in this case, New Albany DVD, argue that “New Albany has not established that book and video stores offering only take-home items cause any untoward secondary effects.”
The 7th Circuit, recognizing that “prior studies had lumped bookstores, peep shows, and exotic dancing establishments together,” agreed, remanding the case back to the district court for an evidentiary hearing, shifting the burden back to New Albany “to supplement the record with evidence renewing support for a theory that justifies its ordinance.” Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-9 (2002).
New Albany, whose expert “conceded that he knows of no research that shows . . . effects for various subclasses of businesses,” supplied “anecdotal evidence” regarding pornographic litter and potential theft, but the 7th Circuit held that the evidence was insufficient:
The theft argument is paternalistic. Why can’t customers make their own assessments of risk? The norm under the first amendment is that government must combat harm to readers with disclosures rather than prohibitions of speech . . . the City needs some evidence that thefts from passers by are a serious problem—and a more severe problem for outlets near churches than for outlets father away . . .
New Albany may be able to resuscitate its anti-litter rationale by showing that the zoning law moves litter to where children (and sensitive pedodontists) won’t see it. Placing businesses where they will be equally productive but less harmful is a lawful objective of zoning . . . Otherwise evidence about litter cannot support the sort of regulation that New Albany has enacted.
The court, clearly wishing to establish evidentiary precedent in sexually oriented business cases, held:
The district court needs to take evidence and apply intermediate scrutiny to New Albany’s ordinance. The case is remanded for proceedings consistent with this opinion and [its own previous decision in] Annex Books, Inc. v City of Indianapolis, No. 05-1926 (7th Cir. Sept. 3, 2009). The injunction should remain in place pending the outcome of this hearing.
In what Eugene Volokh called “a rare victory for a sexually themed business in a case applying Renton scrutiny,” the 7th Circuit held in Annex that secondary effects rationales based on “viewing booth” evidence does not necessarily apply to adult bookstores that lack such booths.
Community Defense Counsel abstract for Annex is here.
COMMENTS
