An Open Letter to Journalists

March 7, 2014

Dear Members of the Media,

I sincerely appreciate all of your hard work in bringing us the news of the day. In this day and age, there is a lot of burgeoning information and it is cumbersome to sift through all of it to provide summaries to the masses. However, there is one thing you do not do that is incredibly frustrating–provide citations.

In reporting on a new science publication, you do not always provide a citation so that the interested reader can learn more. Worse, you rarely identify bill numbers, session laws, or case name/citations when reporting legal news. As a privacy attorney, I found the recent Massachusetts “upskirting” issue might warrant attention. It would have been helpful if you cited the case as Comm. v. Robertson, SJC-11353 (Mar. 5, 2014), even better if you provided a link: . Or, when the legislature promptly acted to outlaw the actions taken by Mr. Robertson, it would have been nice if you cited Acts of 2014, Chapter 23 (or H. 3934):

As a journalist, I am assuming you read the primary source, so that way I can trust your reporting, correct? So, since you have the primary source, please make it easier for us and let us know how we can find it, too. Because, if you don’t share, it might turn out that you missed the real story. Let me spell it out for you–Massachusetts just made many previously lawful and proper hidden security cameras potentially unlawful.

According to the new law, it is now unlawful to secretly record images of fully clothed breasts, buttocks and genitals. Full stop. Your nanny thinks she’s alone, but you have a nanny-cam. Sorry, you probably just broke the law. You want to know which of the neighborhood kids have been going into your backyard when you aren’t home and stomping your daisies? That’s double the punishment.

Bad reporting of bad reactionary legislative lawyering. At least the reporting can be easily fixed.

Thank you.

Jay M. Wolman

David McKee, Are you a Tool?

September 5, 2012

I don’t know, but I think you might be learning a thing or two about the Streisand Effect.

Apparently, Dennis Laurion did not like Dr. McKee’s bedside manner, reviewing him thusly:

When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!

Case was dismissed as being pure opinion, but reinstated on appeal.   It is now before the Minnesota Supreme Court.  Regardless of the outcome, gajillions more have seen the negative review.  Lawyers should counsel their clients on the potential of the Streisand Effect when handling cases such as this.


Massachusetts court strikes down ordinance limiting permits for adult businesses

March 27, 2012

By Laura Tucker

A U.S. District Court in Mendon, Mass., granted summary judgment in favor of Showtime Entertainment, allowing the company a special permit to open a live nude dancing venue and invalidating an ordinance that gave the zoning board too broad of authority to deny permits to similar businesses.

In its order, the court reasoned that even if the establishment would have an adverse secondary effect on the community, the court is still “bound by long-standing principles of constitutional law that narrowly constrain” the regulation of activities that are protected by the First Amendment.

The Mendon city ordinance at issue in the case prohibited the operation of an adult entertainment venue absent a special permit from the Mendon zoning board. The ordinance stated that the board “may” issue a special permit for adult businesses, provided that the business did not fall under certain categories.

The board granted Showtime’s application, but determined that the venue would increase the risk of crime in the town and required that Showtime meet certain conditions prior to operation—notably that it limit its hours of operation from 4 p.m. to 1 a.m. and that it provide various parking, security, safety, and noise reduction measures, as well as prohibiting the venue to sell alcohol.

According to the adverse secondary effects doctrine, government officials may limit adult businesses if they are concerned that the business will have negative secondary effects associated with them—higher crime, for example. The doctrine has sometimes been broadly applied by courts, and many First Amendment advocates are critical of its implications.

Section 5.01(f) governs when the board should not grant a special permit for adult businesses, but, according to Showtime, whose reasoning the court adopted, it did not explicitly state when a permit should be granted because it used the word “may” instead of a more definite “must.” The court analogized to a similar Massachusetts case in which the court invalidated an earlier version of the statute for virtually the same reason. Thus, the court held, the ordinance allowed for broad authority in denying such permits, in violation of the First Amendment.

The town argued, however, that the statute did, in fact, state when a special permit could be granted: when the conditions under which the permit should not be granted were absent. The court rejected this reasoning, stating that the statute did not affirmatively state under what circumstances an adult entertainment venue could operate. Furthermore, the court said the town offered no reason to show that the word “may” should be construed as “must.”

The court’s reasoning included a good reliance on authority from Massachusetts cases, and provides a great upholding of the First Amendment, notwithstanding the town’s reliance on the secondary effects doctrine. Even though the court clearly shows its disapproval for such businesses in the second paragraph of the opinion (“the Court is entirely sympathetic to the concerns of the people of Mendon, as reflected in the actions of their public officials, that such an establishment is likely to have a deleterious effect on the community in a variety of ways”), it still did the right thing by invalidating the ordinance.

Fourth Circuit: You don’t have to choose between girls and booze

March 9, 2011

By Randazza & DeVoy

In this recently released opinion from the Fourth Circuit, Gentlemen’s Clubs have won an important victory in their ability to serve alcohol as well as T’n’A on premises.  The decision in Miller (Defendant-Appellant) v. Legend Night Club (Plaintiff-Appellee), Case No. 09-1540, released today, holds that a Maryland Statute that restricts the activities allowed at an alcohol-serving establishment is unconstitutionally overbroad.

Among the conduct prohibited by Maryland Code Article 2B, §§ 10-405(c) and (d) is allowing patrons to caress or fondle employees’ breasts and buttocks, permitting “any employee or person to wear or use any device or covering exposed to view, which simulates the breast, genitals, anus, pubic hair or any portion of it,” the “display of the pubic hair, anus, vulva or genitals,” and so forth.  Violation of any of these provisions results in an establishment having its alcohol license revoked. Md. Code Article 2B, § 10-405(b).  Prince George’s County was added to the list of counties to which these provisions would apply, effectively ending the adult club industry in that area, which is fortuitously close to Washington, D.C.

Plaintiffs originally sought a declaration that the statute was unconstitutional.  In April of 2009, the District of Maryland held that the statute was unconstitutionally overbroad, and could not readily be limited.  The court also found that the statute’s grandfathering provision, which allowed strip clubs to continue operating and serving alcohol so long as they had been doing so since 1981, violated the Equal Protection Clause.  As much as “cougarism” is the in thing these days, hopefully these longstanding establishments would have hired new talent throughout their existences.

At the appellate level, the Appellants argued that the statute was appropriate under the secondary effects doctrine.  Rather than seeking to curtail nudity and erotic entertainment, the Appellants claimed that they were concerned about the deleterious social effects associated with alcohol-fueled adult entertainment.  For those who aren’t First Amendment attorneys, this is the equivalent of facilely shrieking “think of the children” in the face of everything you dislike.

The Fourth Circuit subjected the relevant statute to intermediate scrutiny, requiring that the  Appellants show that the law materially advances a substantial or important interest by redressing past harms or avoiding future ones.  The Circuit panel’s analysis of this standard was driven by the fact that the Appellants could not provide any evidence of harmful secondary effects arising from alcohol served at gentlemen’s clubs in Prince George’s County.

While such restrictions are surprisingly common around the country, they generally apply specifically to strip clubs and similar institutions.  The statute at issue in Miller did not, and its prohibitions, broadly written, applied to every institution in the state that sold alcohol.  Consequently, a wide breadth of protected behavior would have been trapped within the statute’s ambit.  Simulated sex during dinner theater would result in the venue’s alcohol license being suspended.  Virtually any bar that allowed a bachelorette party in its doors would be put out of business by the statute, and the same would go double for bachelor’s parties.  While nobody seriously questions that these events are protected by the First Amendment, Maryland’s law would have stripped any venue permitting them to occur on their premises of their alcohol license.

Furthermore, the Appellants’ argument that the statute would only be applied to adult entertainment venues found no traction in the Fourth Circuit.  Not only was the statute silent on this issue, but Appellants presented no way to read the statute so it would apply only to those establishments.  The state’s brief history of only enforcing the statute against adult entertainment businesses was not sufficient to show the statute had a limited construction.

Because the financial remedy for the harm caused by enforcing this provision would not be adequate to compensate adult club owners, the Fourth Circuit held that the District Court properly entered a permanent injunction against the statute’s enforcement.  The Circuit wrote that: “Regarding the third requirement for injunctive relief, the threatened injury to Plaintiffs easily outweighs whatever burden the injunction may impose. At a minimum, each Plain- tiff faces a loss of its license coupled with a loss of valuable business opportunities.”  The imposition of this injunction imposed no burden on the state of Maryland and furthered the public interest of protecting constitutional rights, even at the expense of crybabies.

Maryland could amend its statutes to circumvent this decision.  Because it already declined to do so in 2007 when the case was originally pending, though, it seems unlikely to do so again.  As a result, the alcohol distribution rights of adult entertainment venues in Maryland are safe for now.  One cannot doubt, however, that some Palinite will agitate against this constitutional protection in the near future.

Likely Backlash Against Assange’s Self-Righteous Crusade

December 17, 2010

by Charles Platt

I’m getting an uneasy feeling when I watch Julian Assange using pretentious phrases such as “my philosophy” and “my work.” (See his latest interview, here.) It’s the same feeling I had when I saw the World Trade Center going down. A feeling that I am watching a golden opportunity for people in power to take away some of my freedoms.

Assange’s self-righteous crusade is sufficiently defiant, and is being done in such a pompous style, some kind of retaliation seems inevitable. Already the UN is on record as wanting to “harmonize” efforts to regulate the Internet, in response to Wikileaks. (See this news item.)

I am old enough to remember how publishers got rid of US laws regarding pornography. They fought a carefully executed, incremental campaign. Freedoms tend to be won this way, slowly but relentlessly, in small steps. Media whores who make grand gestures are not useful in this process. They just provide more fuel for backlash.

We enjoy freedoms online because resourceful groups such as ACLU and EFF fought and won test cases. How unfortunate it would be to see those freedoms squashed because of a prima-donna whose “philosophy” and “work” have been of negligible value so far. It’s important to remember that he is really just another content aggregator, and the material that he has revealed has not been of critical significance. Certainly not important enough to justify a battle that we are likely to lose.

Australian study shows that strip clubs are safer than churches

April 21, 2010

The New South Wales Bureau of Crime Statistics and Research showed that you are statistically more likely to be a victim of a crime at church than in a strip club.

Places of worship also took the lead in sexual offences (16), theft from motor vehicles (33), resisting arrest (7) and liquor offences (10).

Harassment and threatening behaviour at places of worship (30) was over 50percent more than at places of adult entertainment (13). (source)

Worst. Oral argument. Ever.

April 20, 2010

By J. DeVoy

Oral arguments are strange things.  With enough practice, they can be sharp and flawless tools of advocacy, but trying to use them too soon can lead to disaster.  I had a case of the latter during a moot court practice last year.  Eager to enhance my argument, I tried to go completely without notes for my second or third practice.  I also had the added challenge of appearing before my coach and two faculty practice judges.

I brought my legal pad just to be safe.  I had no intention of needing or using it, but thought that having a hedge against total failure would be a good idea.  It was an exciting argument about designated protest areas, personal preferences being doled out by public employees, and secondary effects of government actions that restricted free speech.

My teammate and I were representing the Petitioner, the local government that promulgated this rule.  He went first.  I went over my argument in my head as he spoke, trying to pay attention to the questions the judges were asking.  He, too, was trying to practice without notes for the first time.

Thirteen minutes elapsed and it was my turn to shine.  I took my pad up with me to the podium, addressed the court and began.  It went well for about a minute until I started arguing a different government speech issue regarding employees and political statements.  Whoops.

I caught myself as quickly as I could and turned to my notepad.  The first page had nothing to do with my argument.  “No big deal,” I thought, flipping to the second page, showing no signs that anything was amiss.  Still nothing.  Another flip of the page, this time faster, and still no argument.  I did this again and again, hoping against hope to see the word “Petitioner” emblazoned on the top of any of them.  I brought the wrong pad.  Instead of my legal pad with notes for moot court, I had brought my “idea” pad, which contained so many things utterly useless for my argument.  The beginnings of a screenplay about a Ph.D. student who has his life ruined after discovering and trying to publicize his findings that IQ is 100% genetic.  Ideas for underserved ice cream flavors, such as “Pomegranate Mango” and “Gin.”  People on whom I sought revenge for minor slights both real and imagined.  An analysis on the relative merits of putting Rachel Starr on the front of my annual winter holiday card to family members and whether doing so would constitute fair use.  Not a word about secondary effects.

Inspiration needed to come, and fast, as the time window for looking deliberately contemplative had long expired.  I hoped to summon the advocacy skills of Johnny Cochran, Andrew Rima or Marc Randazza.  All that came to mind were parole hearings, specifically John Lovitz’s in Trapped in Paradise and Charles Manson’s from 1992.  I had no option but to work with what I had.

“Counsel, how are the secondary effects of public safety at all relevant in this case and not an ad hoc justification for the City’s actions?” Asked the judge.

“Well, people are like dinosaurs on the ground, constantly living in fear of the Pterodactyl, which could fly.  It could fly and rain death and pain upon them at any time because other dinosaurs could not, and only the most heavily armored, like the Stegosaurus, could even fathom protecting themselves.  But the public, like the dinosaurs that had brains the size of chestnuts, cannot fathom anything, and it is up to government to do the thinking.  Here, the city wanted to reverse the equities and make the people like the Pterodactyl, taking wing and flying high, high above their collective problems, namely the inevitable bloody clash of protesters and counter-protesters.”  What was I even saying?

“Counselor…what?”  She seemed genuinely confused.  But, I might have been on the way to dazzling her beyond understanding what was happening.

We reach an impasse here, your honor, moving pawn four, er, bishop four to seven.  All the oceans’ contents, if they were the city’s tears, they would not be enough to express the remorse of the city in taking this action.  But it was necessary because public safety in the face of potential rioting is part and parcel of other restrictions this court has affirmed for the sake of public welfare under the secondary effects doctrine, including petty crime and prostitution.  Surely this is as valid, affecting the welfare of the person, as constitutionally permissible restrictions designed to maintain property values based solely on the secondary effects of otherwise permissible speech.”  I was beginning to believe myself and even find my legs.  Alas, it was not to be.

“Bishop…Chess? Dinosaurs? What are you talking about, how does this relate to the regulation of a protest on public property?”  She just wasn’t letting up.  Not that I was giving her any reason to, but this was disheartening.

I decided to stun the bench in a final desperate effort.  “Your Honor, this is about decency, basic human decency, and the right of the state to enforce it when it can limit violence even if it means limiting speech.  This is about what’s right!”  With that, I made a dramatic hand motion that flung my pad at the bench, where it struck with a thud.  The tribunal clearly was rattled.  To this day, I can only imagine the mortified look on my teammate’s face as it happened.

“Counselor, what is the meaning of this?” The lead judge asked, barely below a scream.  “WHAT IS THIS?!”

Defeated, I paused to muster all the aloofness I was capable of and said, “the Aristocrats.”

H/T: Derangement and Description, for giving me an idea I never would have thought of otherwise.

P.S. – None of this actually happened.

The Seventh Rides Again in Support of the First Amendment

September 10, 2009

pornoslaviaThe Alameda Books rule boils down to this: If a city wants to ban a First Amendment protected business, it can only do so if it has evidence that its regulations actually might help do something about adverse secondary effects, the evidence can’t be complete bullshit, and the regulation can’t negatively impact the quality and amount of speech as a proxy for regulating the secondary effects.

There was a period of time in which courts did not seem to be embracing the Alameda books case. As simple and as light of a rule as it laid down, conservative judges were looking for any unprincipled way they could to give cities and towns a pass. Judge Easterbrook, the hero of American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) has, in a pair of recent decisions, made it clear that in Illinois, Indiana, and Wisconsin, Alameda Books is alive and well.

Last week, I reported on a recent 7th Circuit decision affirming the principles laid down in Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In that posting, I discussed the Annex Books case, and how the City of Indianapolis is going to need to go back to the drawing board in its efforts to ban porn.

A city with a bit of a smaller stature, New Albany, Indiana just got its own Constitutional smackdown from the same court (and the same judge). Like many cities that catch Christ Fever, and decide to try and ban smut from their fair streets, New Albany knew that it couldn’t just outlaw porn shops. Accordingly, it made sure to repeat the magic words “adverse secondary effects.” However, like most cities, they didn’t come up with any scientific studies backing up their regulations, and showing how they might mitigate these phantom adverse secondary effects. New Albany’s hobgoblin “secondary effects” were crime and “litter.”

Apparently, the City of New Albany expected the court to believe that an adult bookstore that was closer to a church was more likely to cause crime than a store far from a church. Similarly, the city brought in a few citizens who anecdotally told stories of finding pornographic litter around adult bookstores. To “prove” that these effects would be mitigated by new regulations, New Albany trotted out some old studies of porn theaters, failing to see how a business that sells porn for take-out purposes might be a completely different animal.

In the district court, New Albany relied on studies conducted in cities across the country. Many of these show that a concentration of adult businesses in a part of a city is associated with higher crime and lower property values nearby. As we observed in Annex Books, Inc. v. Indianapolis, No. 05-1926 (7th Cir. Sept. 3, 2009), however, these studies principally reflect the effects of adult businesses that offer live entertainment or peep shows; they do not necessarily demonstrate that businesses selling books and DVDs have the same consequences for morals offenses (prostitution, lewd exhibition) or other kinds of crime. New Albany’s own expert “conceded that he knows of no research that shows . . . effects for various subclasses of businesses,” such as plaintiff’s retail-only store. 362 F. Supp. 2d at 1021.

Recognizing that prior studies had lumped bookstores, peep shows, and exotic dancing establishments together, New Albany offered some anecdotal justifications in the district court. It cited testimony in some earlier cases by people complaining about pornographic litter near adult bookstores, and it suggested that these stores may expose their customers to thefts. The former line of argument rests on the fact that some customers are bound to throw away wrappers, which may have images inappropriate for children. The “theft” line of argument starts with the premise that many customers of adult establishments pay in cash, which makes them a target for thieves. (Op. at 5-6)

The court trashed the city’s arguments, calling for customers to make their own risk assessments.

The norm under the first amendment is that government must combat harm to readers with disclosures rather than prohibitions of speech. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986). Just as there is no hecklers’ veto over speech, there is no “thieves’ veto.” The police must protect the readers from the hecklers or thieves, rather than ease their workload by forbidding the speech. (Op. at 6)

As far as the City’s “litter” argument goes, the Court held that it was “perilously close” to violating the rule in Alameda Books that a city can’t reduce adverse secondary effects merely by reducing speech. If you sell 100 porn magazines and this produces 10 pieces of litter, it is no trick to reduce the litter by reducing the number of magazines sold. However, this is constitutionally impermissible.

The only way to cut litter by 10% may be to reduce sales by 10%, and such a justification would fail under [Alameda Books].(Op. at 9)

Indianapolis Adult Entertainment Ordinance Struck Down – Annex Books v. City of Indianapolis

September 5, 2009

The City of Indianapolis has a long and shameful history of treading on the Constitution in its own little private war on sexual free expression. Back in the 1980s, religious fundamentalists on the Indianapolis City Council teamed up with Catharine MacKinnon and passed a ludicrous anti-pornography ordinance designed to creatively outlaw adult entertainment altogether. Under that law, not only was it illegal to “traffic” in pornography, but if a woman felt injured or discriminated against and she could show that the bad guy had seen porn, she could sue the seller or the maker of the porn for damages. The theory being that if a man reads porn and then beats up a girl, the porn did it. Incredibly, the City passed the law, and the Seventh Circuit Court of Appeals, in an opinion by Judge Easterbrook, gave the City an education in First Amendment law by trashing the MacKinnon ordinance and laying down some Constitutional poetry:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be. A belief may be pernicious — the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.

The ideas of the Klan may be propagated. Communists may speak freely and run for office. The Nazi Party may march through a city with a large Jewish population. People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke the constitutional amendments granting the vote to blacks and women. They may do this because “above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas . . . . American Bookseller Ass’n. Inc, v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (citations omitted)

Sadly, over the past 25 years, the City of Indianapolis has gotten no less erotophobic, and is still run by the same kind of people – those with no respect for the Constitution. This time, they were not aided by MacKinnon, but carried on in the spirit of her intellectual dishonesty by passing Indianapolis Rev. Code §807-103, which imposed unconstitutional restrictions on adult bookstores. Once again, Judge Easterbrook was there, protecting the Constitution in Annex Books, Inc. v. City of Indianapolis, ___ F.3d ___ (7th Cir. 2009).

The ordinance defined an “adult entertainment business” as any store that “devotes 25% or more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices.” (Op. at 1) While such a label might not seem like a big deal, being defined as an “adult entertainment business” comes with a penalty. An AEB must obtain a special license from the City (how’s that for “conservative” values — requiring a citizen to get a license from the government before he can sell books), can not open on Sundays, and can not be open between midnight and 10 a.m. on other days.

The City of Indianapolis, like most cities that pass these kinds of laws, tried to justify the ordinance by claiming that it was not a law against certain kinds of books, but a law designed to reduce “adverse secondary effects.” The “adverse secondary effects” doctrine states that the government can’t ban adult bookstores, pornographic movie theaters, or strip clubs because of the content of their expression (as doing so would be a clear violation of the First Amendment), but if a city wants to regulate these kinds of businesses in order to prevent the “crime” and adverse effects that they have on the city, the government can do that. Of all the ordinances I have ever seen that purport to regulate “adverse secondary effects,” I can count on one hand the number that were honestly passed for that reason. See Medway, Mass. “Adverse secondary effects” more often is just a trio of magic words that city councils have learned to recite at the right time, to give their ordinances the veneer of being passed for a proper purpose.

Judge Easterbrook held the City’s feet to the fire this time. He correctly relied upon Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) in holding that in order for the City’s ordinance to survive a challenge, “the City needs evidence that the restrictions actually have public benefits great enough to justify any curtailment of speech.” See The Alameda Books Case Comes to a Rolling Stop. In other words, if adult bookstores do really cause crime, a city can’t just ban adult bookstores to stop the crime, the city has to be creative and come up with a way to regulate the bookstores, but only in a manner that will really address the crime and which will not appreciably diminish the amount of overall speech.

For example, in Alameda Books, the city of Los Angeles required adult businesses to be dispersed – that is that they would need to be a certain distance from each other. The city’s theory being that an occasional adult bookstore would not cause problems, but a critical mass of them could create adverse secondary effects. Indianapolis relied upon this kind of dispersal evidence to justify its ordinance, which brought out a penalty flag from the Seventh Circuit.

But here the City encounters problems, for the studies on which it relies— like Justice Kennedy’s hypothetical—deal with ordinances dispersing adult businesses. The 2003 revision does not require dispersal. Instead it closes all businesses after midnight and on Sundays, and requires bright interior lights when the businesses are open. None of the studies on which the City relied before enacting the law, and none introduced in this record, concerns that kind of ordinance. Nor do the studies show that an increase in adult businesses’ operating hours is associated with more crime; the studies are simple cross-sectional analyses that leave causation up in the air. (In other words, they may show no more than that adult businesses prefer high-crime districts where rents are lower.)

More importantly, the studies to which the City points concern adult businesses that offer live sex shows, private viewing booths, or both. This circuit’s decisions likewise concern live entertainment. See, e.g., R.V.S., L.L.C. v. Rockford, 361 F.3d 402 (7th Cir. 2004) (exotic-dancing nightclubs); G.M. Enter-
prises, Inc. v. St. Joseph, 350 F.3d 631 (7th Cir. 2003) (nude dancing in bars). Three of the four plaintiffs in this suit, however, do not offer live entertainment or private viewing. They are simple book or video outlets, brought under the regulatory umbrella only because 25% or more of their sales come from sex-related materials. Until the 2003 amendments, these stores were treated the same as Barnes & Noble or Blockbuster Video. If they were associated with significant crime or disorderly conduct, it should be easy for Indianapolis to show it. But the Cityhas not offered an iota of evidence to that effect. (Op. at 3-4)

The only “evidence” that Indianapolis put forth to support its ordinance was that there were 41 arrests for “public masturbation” at one bookstore that also offered private video viewing booths. “Yet it is hard to grasp how misdemeanors committed in single-person booths justify and video retailers that lack such booths.” (Op. at 4). Easterbrook noted that the City did not offer any evidence of when the arrests occurred. For example, unless there were a significantly higher number of arrests for public masturbation on Sundays or after midnight, then how can the city justify shutting down a bookstore on Sundays and after midnight to address the adverse secondary effect of public masturbation?

If there is more misconduct at a bar than at an adult emporium, how would that justify greater legal restrictions on the bookstore—much of whose stock in trade is constitutionally protected in a way that beer and liquor are not.

Indianapolis has approached this case by assuming that any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city. That might be so if the rational-relation test governed, for then all a court need do is ask whether a sound justification of a law may be imagined. But because books (even of the “adult” variety) have a constitutional status different from granola and
wine, and laws requiring the closure of bookstores at night and on Sunday are likely to curtail sales, the public benefits of the restrictions must be established by evidence, and not just asserted. The evidence need not be local; Indianapolis is entitled to rely on findings from Milwaukee or Memphis (provided that a suitable effort is made to control for other variables). But there must be evidence; lawyers’ talk is insufficient. (Op. at 4-5)

Ultimately, the Seventh Circuit relied on Justice Kennedy’s concurrence in Alameda Books, which is the controlling opinion in that case. Kennedy’s concurrence holds that a regulation of adult bookstores can meet First Amendment muster if it is “likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.” 535 U.S. at 445 “[A] city must advance some basis to show that its regulation has the
purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. … A city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449.

The Seventh Circuit found that the City of Indianapolis had failed to meet this standard. Its reliance upon irrelevant evidence to justify an ordinance that seemed quite likely to diminish the quantity and accessibility of speech rendered it unconstitutional.

Hat Tip to Cary Wiggins. And a big shout out to Michael Murray, Esq. who argued the case for the bookstores.

Benicia, Calif. Ponders Adult Entertainment Ordinance

December 16, 2008

Some residents of Benicia, California want the city council to ban adult entertainment. Unfortunately for them, there is a pesky thing called the First Amendment. Nevertheless, the Benicia city council is working on a new ordinance – a public comment session will take place this evening. (source)

Monroe, La. Moves to Regulate Adult Businesses

December 10, 2008

The town of Monroe, Louisiana is the latest to take up the cause of regulating sexually oriented businesses under the guise of stemming “adverse secondary effects.” (source)

[The] ordinance states that no sexually oriented business shall operate within 1,500 feet of a public park, library, nonprofit educational museum, a church of synagogue, public or private schools, day care centers, another sexually oriented business. (source)

To lawfully restrict these First Amendment protected businesses, municipalities must show that the regulations are designed to address the “adverse secondary effects” of sexually oriented businesses, and that the regulations will not simply address those effects by wiping out such businesses altogether. I question how having a sexually oriented business 1250 feet away from a church will cause greater “secondary effects” than having it 1600 feet from the church. This seems to be more religious pandering than a valid attempt to improve conditions in Monroe.

The comments to the story are pretty funny. For example, this one by “rockchunker“:

Please, somebody name one KNOWN secondary effect. Not some B.S. anecdote of some weenie wagging perv your cousin’s friend’s sister claims to have seen.

Let’s have an actual case of a PROVEN regular, consistent secondary effect of the existence of such a business within a city.

Waste. Of. Time.