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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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