6th Circuit: Definitions of ‘adult cabaret,’ ‘adult-oriented establishment,’ and ‘adult entertainment’ in Tennessee’s Adult-Oriented Establishment Registration Act are upheld along with “no-touch” restrictions
Entertainment Productions v. Shelby County, Tenn., 588 F.3d 372, TN 588 F.3d 372 (6th Cir. Nov. 25, 2009)
Definitions of ‘adult cabaret,’ ‘adult-oriented establishment,’ and ‘adult entertainment’ in Tennessee’s Adult-Oriented Establishment Registration Act are upheld along with “no-touch” restrictions.
Entertainment Productions (“ET”), Inc. sought a preliminary injunction against the enforcement of the Tennessee Adult-Oriented Establishment Registration Act, Tenn. Code Ann. § 7-51-11 (“The Tennessee Act”) on four grounds: (1-2) that “the definitions of ‘adult cabaret,’ ‘adult-oriented establishment,’ and ‘adult entertainment’ render the Act unconstitutionally overbroad and vague; (3) that the act’s “no-touch” provisions are overbroad; and (4) that the act “will substantially diminish the availability of adult speech in Memphis, Shelby County.” The district court denied the motion and the Court of Appeals affirmed.
Judges Bogg delivered the opinion of the court joined by Judge Sutton. Judge Moore delivered a summary opinion concurring in the result only. The appellate court rehearsed the applicable constitutional standards governing the legal regulation of sexually oriented businesses:
Notwithstanding the protection accorded to erotic expression by the First Amendment, The Supreme Court has held that governments may adopt measures intended to ameliorate the adverse secondary effects of such expression, so long as the restrictions placed on expression survive intermediate scrutiny as set forth in United States v. O’Brien, 391 U.S. 367, 377 (1968) . . . and City of Renton v. Playtime Threatres, 475 U.S. 41, 47 (1986) . . . Restrictions on sexually explicit expression are constitutional permissible if: they further a substantial governmental interest ‘unrelated to the suppression of free expression . . . specifically, the amelioration of adverse secondary effects associated with adult establishment; they are narrowly tailored and they ‘do not unreasonably limit alternative avenues of communication . . .’
After engaging in a lengthy recitation of the case precedents and an analysis of the relevant the statutory language, the appellate court rejected all definitional challenges largely on grounds that the Act was readily subject to reasonable narrowing constructions that would except mainstream artistic venues.
The Tennessee Act requires that all performances “only occur upon a stage at least eighteen inches (18″) above the inmediate floor level and removed at least six feet (6′) from the nearest entertainer, employee, or customer . . . . ” It further defines and restricts nudity and various forms of sexual contact. After lengthy analysis, the court characterized the restrictions as being intended to further one goal: “the elimination of the kind of sexual contact that it typically attended by adverse secondary effects, such as disease and prostitution.”
Claims that the Act would result in a “drastic reduction in the quantity and accessibility of speech” were rejected on grounds that the contention depended on ET’s assertions of vagueness and overbreadth which the court had rejected.