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.