6th Circuit affirms limited “adult business” definition, incremental approach to combating negative secondary effects
East Brooks Books, Inc. v. Shelby County, TN, No. 08-5958 (6th Cir. Nov. 25, 2009)
6th Circuit affirms limited “adult business” definition, incremental approach to combating negative secondary effects.
East Brooks Books, Inc., operator of two bookstores, appealed a district court’s denial of its motion for a preliminary injunction against a Shelby County sexually oriented business ordinance which adopted Tenn. Code Ann. § 7-51-11 (“The Tennessee Act”). East Brooks argued that (1) the Act’s definition of “adult bookstores,” which includes those establishments that both primarily sell sexually oriented material and restrict admission to adults, is “under-inclusive” and in violation of the Equal Protection Clause; (2) the Act’s prohibition on the sale and consumption of alcohol is overbroad. The 6th Circuit affirmed.
According to Tenn. Code Ann. § 7-51-1102, an “adult bookstore” is a business that (a) “offers, as its principal or predominate stock or trade, sexually oriented material, devices, or paraphernalia” and (b) “restricts or purports to restrict admission to adults or to any class of adults.”
East Brooks argued that the second criterion renders the Act under-inclusive on its face because its double criterion excludes bookstores that sell adult material without restricting admittance to adults and that this exclusion is not rationally related to the government’s interest in combating negative secondary effects. The 6th Circuit pointed out, however, that another statute in the Tennessee Code already prohibits the display of “adult material . . . anywhere minors are lawfully admitted.” East Brooks would therefore be hard pressed to locate a business that met the first criterion without also meeting the second. Furthermore, according to the 6th Circuit, the Act’s inclusion of the admittance criterion reliably identifies businesses that advertise “adult” material: “Hence, it is not irrational for the legislature to use the access restriction as a means of identifying those bookstores that are likely to produce adverse secondary effects targeted by the Act.” The 6th Circuit returned to its reasoning in Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777 (6th Cir. 2005) in holding that such identification and regulation, even if it is not comprehensive, even if it amounts only to a “step-by-step approach to combating secondary effects,” is not “a cause for concern under rational-basis review because a government may implement its program of reform by gradually adopting regulations that only partially ameliorate a perceived evil.”
With respect to the Act’s prohibition on the sale of alcohol, East Brooks argued that “there is no evidence connecting alcohol consumption on the premises of an adult bookstore to the targeted secondary effects.” The 6th Circuit disagreed:
A proscription on alcohol is not in itself a prohibition on any protected expression. Thus, to be persuaded by the claim that prohibiting alcohol in adult bookstores “reaches a substantial number of impermissible applications,” we need to believe that the threat of license suspension for alcohol use will deter bookstore owners from offering adult fare in their establishments, or that the prohibition on the consumption of alcohol will keep out customers wishing to exercise their protected right to peruse adult-oriented materials offered by the bookstores. Neither prospect is probable, in view of the likely fact that the primary purpose of adult bookstores is to sell adult materials, and the primary purpose of an average customer in such an establishment is to purchase or view said materials.
See also Law of the Land (Albany Law School): Adult Business Ordinance Withstands Overbreadth Challenge