by Allison Arends
New Albany DVD, LLC v. City of New Albany, Indiana
(Federal Seventh Circuit Court of Appeals, September 10th, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)
Court remands case for evidence concerning trash and theft resulting from adult entertainment facility.
In 2003 the Plaintiff, New Albany DVD, bought property, secured all necessary licenses, and renovated a store for the operation of a store that sells adult books, magazines, and videos. Plaintiff’s plans did not include live, on-site adult entertainment. At the time of the purchase there were no zoning restrictions to the type of business New Albany DVD intended to operate, yet the City refused to carry out the final inspection of the store in February 2004, and on that day enacted a six-month moratorium on new adult businesses. In March the City Council amended the zoning rules to forbid sexually-oriented business at the plaintiff’s site, and prohibited a sexually-orientated business from operating within 1,000 feet of a church or residential zone. The Plaintiff’s store is located 175 feet from the nearest church and 115 from the site of a proposed residential building.
The plaintiff contended, among other claims, that under 42 U.S.C section 1983 and the First Amendment the studies used by the city to justify adverse secondary effects of adult stores on the community were flawed, in that those studies addressed the secondary effects of live adult entertainment facilities, not the retail-only type facility being proposed by the plaintiff. The city argued that the studies used show a correlation between the concentration of sexually-orientated businesses and higher levels of crime and lower property values in a community; however, the city’s own expert “conceded that he knows of no research that shows… effects for various subclasses of business,” like the plaintiff’s retail-only store.
The city also attempted to use its concerns over theft and trash to justify suppression of the plaintiff’s First Amendment right. Using Alameda Books as precedent the Seventh Circuit quickly rejected the city’s theft argument by stating that it is paternalistic, and that the “police must protect the readers… rather than ease their workload by forbidding the speech,” The Seventh Circuit found that New Albany did not supply sufficient evidence to support the the idea that adult bookstores located near churches or residences attract thieves. The court goes on to reject the trash concern by stating that, the reduction in “adverse secondary effects may not be achieved just by curtailing speech… and that for this justification to work, it will be necessary to establish (a) how much sex-oriented litter an adult book- store generates; (b) who is likely to see that litter in the parts of New Albany where adult bookstores are allowed to operate; and (c) how much adult litter will remain in New Albany’s central business area (generated by adult corners of other businesses) if plaintiff is exiled to an industrial district or highway.” The Seventh Circuit remanded the case to the district court to take further evidence concerning the city’s theft and trash justifications, and to apply intermediate scrutiny to New Albany’s ordinance.