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Court rules on adult-business ordinance

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Six years after the city of Indianapolis amended its adult-business ordinances, the 7th Circuit Court of Appeals has ordered the District Court to hold an evidentiary hearing on whether the restricted hours in the new ordinance violate the businesses' constitutional rights.

In Annex Books, et al. v. City of Indianapolis, Ind., No. 05-1926, several adult book stores filed suit after the city expanded the definition of adult entertainment business to include those with more than 25 percent of their inventory consisting of adult literature, films, or devices, or if at least 25 percent of a business's revenue came from adult-themed items. Prior to the amendment, to qualify under the definition, the requirement was 50 percent. The ordinance also required businesses to have licenses, be well-lit and sanitary, and not to be open on Sundays or between midnight and 10 a.m. on other days.

The only issue on review today from the original challenge is the definition of adult entertainment business and the imposition of limits on these stores that other general books stores and video outlets don't face.

The city argued the restrictions were justified because they reduce crime and other secondary effects associated with adult businesses. The city relied on Justice Anthony Kennedy's reasoning in Los Angeles v. Alameda Books, Inc. 535 U.S. 425 (2002), as well as a study it conducted in 1984 before adopting the original ordinance.

But the city relied on studies that don't deal with the exact issue before the court nor do the studies show that an increase in adult businesses' hours is associated with more crime, wrote Chief Judge Frank Easterbrook. The studies the city used concern businesses with live sex shows, private booths, or both; only one of the plaintiffs in the instant case offers any kind of live entertainment.

"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," he wrote. "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 Circuit Court noted that ordering the District Court to hold an evidentiary hearing and apply immediate scrutiny isn't helpful to the judge or lawyers, but it is possible to be more concrete in arguments supporting the ordinance thanks to Justice Kennedy's opinion in Alameda Books, wrote the chief judge.

A city must advance some basis to show its regulation has the purpose and effect of suppressing secondary effects while leaving the quantity and accessibility of speech substantially intact. He insisted the benefits be compared to the detriments, among other things, Chief Judge Easterbrook wrote.

"These thoughts should give some structure to the hearing on remand - though we recognize that, because crime and speech cannot be reduced to a common metric, a direct comparison (how much speech should be sacrificed to achieve how much reduction in crime?) is difficult if not impossible," he wrote.

Chief Judge Easterbrook also suggested the reasoning in Encore Videos, Inc. v. San Antonio, 330 F.3d 288 (5th Cir. 2003), may provide some assistance on remand.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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