by Gary Taylor
Annex Books, Inc. v. City of Indianapolis
(Federal 7th Circuit Court of Appeals, January 24, 2014)
The city of Indianapolis requires all adult bookstores to close between midnight and 10am daily, and to remain closed all day on Sundays. In previous (2010) litigation before the 7th Circuit on the same ordinance, the Court found the city’s evidence for the need for a statute requiring closure “weak.” The evidence the city offered addressed different types of adult materials, and pertained to cities with different types of ordinances, including ordinances that do not require closure. When the 7th Circuit remanded the case to the district court the city offered one lone justification for the ordinance: that closure resulted in fewer armed robberies near adult bookstores.
The 7th Circuit pointed out that the statistical evidenced offered on this point was not the result of multivariate regression. When regression analysis was utilized the data no longer supported the proposition that robberies were more likely at late-night adult bookstores versus other late-night establishments such as taverns, liquor stores, pharmacies or convenience stores (which the city did not require to be closed as part of the ordinance). Moreover, the robberies that did take place more often happened to the bookstore itself and its patrons, rather than to other businesses or passers-by. “The Supreme Court has not endorsed an approach under which governments can close bookstores in order to reduce crime directed at businesses that knowingly accept the risk of being robbed, or persons who voluntary frequent their premises.” Citing the Supreme Court in Alameda Books, the court affirmed that “a city cannot regulate the secondary effects of speech by suppressing the speech itself….[The benefits of the Indianapolis ordinance] come from closure: the shuttered shops can’t be robbed at gunpoint, and they lack customers who could be mugged. If that sort of benefit were enough to justify closure then a city could forbid adult bookstores altogether.” The case was remanded with an order to issue an injunction preventing the enforcement of the closure ordinance.