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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.