Missouri Supreme Court upholds law regulating sexually oriented businesses
Ocello v. Koster, No. SC91563 (Mo. Nov. 15, 2011)
A Special Message from Joe Ortwerth at the Missouri Family Policy Council:
State Supreme Court Upholds Missouri Adult Business Law
Missouri families won a major victory today in our state courts. The Missouri Supreme Court, in a unanimous ruling, upheld the state’s new law regulating sexually oriented businesses. That law was adopted by the Missouri Legislature last year to limit the negative secondary effects from businesses such as strip clubs, “adult” video stores and video arcades, and so-called “gentlemen’s clubs.”
The law prohibits totally nude dancing and any contact between dancers and patrons. It prohibits the sale of alcohol at such businesses and requires that they close at midnight. It restricts enclosed booths to discourage promiscuous sexual activity. It requires that any such businesses be located at least 1000 feet from any school, church, day care center, public park, any residence, or any other sexually oriented business.
The law was challenged by operators of sexually oriented businesses around the state, who claimed that it violated their First Amendment rights to freedom of expression. They also alleged that the law has resulted in economic harm to their establishments and had forced many of them to close.
The State Supreme Court ruled, consistent with numerous federal court decisions, that the provisions in Missouri’s sexually oriented business law were constitutional. The Court found that the Missouri Legislature “relied on evidence reasonably believed to be relevant to establishing a connection between the act and the reduction of negative secondary effects associated with sexually oriented businesses.”
“The voluminous evidentiary record on which the Legislature relied to establish a connection between sexually oriented businesses and negative secondary effects–consisting of judicial opinions, studies, crime and health reports, expert testimony and anecdotal evidence–was more than sufficient to meet the government’s burden.”
Countless studies from across the country have demonstrated that sexually oriented businesses are a breeding ground for sex crimes, prostitution, drug trafficking and drug use, property damage and loss of property values, and urban blight.
The justices also ruled that the law was not unconstitutional “simply because it may make some sexually oriented businesses economically less viable.” The court stated: “To the extent the businesses claim that the act led to reduced revenue at sexually oriented businesses, forcing many to close, this does not make the act unconstitutional. The Constitution protects speech, not the economic viability of adult businesses.”
The state’s High Court affirmed a previous decision upholding the law by Circuit Judge Jon Beetem. Judge Laura Denver Stith authored the opinion. Her opinion was joined by Judges Richard Teitelman, Mary Russell, Patricia Breckenridge, Zel Fischer, William Ray Price, and special judge William Francis.
We are grateful to former State Senator Matt Bartle, the sponsor of the legislation, and former Representative Ed Emery, who handled the bill in the Missouri House. We commend the many members of the General Assembly who fought for and voted for the bill. We appreciate the action of Governor Jay Nixon in signing the bill into law next year.
We appreciate the excellent work done by Attorney General Chris Koster and his staff in defending the work of the General Assembly. The Attorney General allowed attorney Scott Bergthold, who drafted most of the statute and is an expert in this area of the law, to argue the case before the Supreme Court. General Counsel Ron Holliger and attorneys Mark Long and Emily Dodge also provided valuable assistance in preparing the state’s defense.
As a result of the Supreme Court’s action today, Missouri now retaiins one of the toughest and most comprehensive laws regulating sex shops and strip clubs of any state in the nation. Missouri cities and towns will now have the tools to limit the damage done by such businesses to the health and safety of their communities. We praise God for this tremendous victory.