INDIANAPOLIS—Whatever validity there may be in the U.S. Supreme Court's—in particular, Justice Anthony Kennedy's—musings in City of Los Angeles v. Alameda Books about the utility of dispersing two adult businesses under one roof, Seventh Circuit Chief Judge Frank H. Easterbrook can be commended for knowing the limits of the Alameda decision and applying them to Indianapolis' 2003 adult business ordinance.
After quoting Justice Kennedy's justification for why Los Angeles might be able to force an adult "emporium" to split into its component parts and move to separate buildings, Judge Easterbrook, in his opinion in Annex Books v. Indianapolis, notes that the city's 2003 ordinance does not call for dispersal of adult businesses from each other, but rather tries to use Justice Kennedy's words, as well as a (debunked) 1984 secondary effects study, to legitimize the closure of adult businesses between the hours of midnight and 10 a.m. Mondays through Saturdays, and all day Sundays.
"The 2003 revision does not require dispersal," Judge Easterbrook differentiated. "Instead it closes all businesses after midnight and on Sundays, and requires bright interior lights when the businesses are open, None of the studies on which the City relied before enacting the law, and none introduced in this record, concerns that kind of ordinance. Nor do the studies show that an increase in adult businesses' operating hours is associated with more crime; the studies are simple cross-sectional analyses that leave causation up in the air. (In other words, they may show no more than that adult businesses prefer high-crime districts where rents are lower.)"
"More importantly, the studies to which the City points concern adult businesses that offer live sex shows, private viewing booths, or both," he continued. "This circuit's decisions likewise concern live entertainment. Three of the four plaintiffs in this suit, however, do not offer live entertainment or private viewing. They are simple book or video outlets, brought under the regulatory umbrella only because 25% of more of their sales come from sex-related materials. Until the 2003 amendments, these stores were treated the same as Barnes & Noble or Blockbuster Video. If they were associated with significant crime or disorderly conduct, it should be easy for Indianapolis to show it. But the City has not offered an iota of evidence to that effect." [Citations omitted here and below]
After acknowledging that the city presented evidence that 41 arrests for "public masturbation" were made at Annex Books, the only one of the four plaintiffs which offers in-store viewing, Judge Easterbrook delved more deeply into the alleged repercussions of that fact.
"The district court thought this datum enough, by itself, to support the 2003 amendments [to the existing ordinance]," the judge wrote. "Yet it is hard to grasp how misdemeanors committed in single-person booths justify the regulation of book and video retailers that lack such booths. Indeed, we do not know when the arrests occurred. Unless most of them were after midnight, or on Sunday, they don't justify the ordinance even with respect to establishments that supply entertainment on the premises. Nor can we tell whether 41 arrests at one business over the course of 365 days is a large or a small number. How does it compare with arrests for drunkenness or public urination in or near taverns, which in Indianapolis can be open on Sunday and well after midnight?"
All excellent questions, of course, and ones that are rarely asked by courts when adult hours-of-operation ordinances are before them... but this Seventh Circuit panel, which also included Circuit Judges Joel Flaum and Ilana Rovner, was willing to "step up to the plate" and ask them.
"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," Judge Easterbrook charged. "That might be so if the rational-relation test governed, for then all a court need do is ask whether a sound justification of a law may be imagined. 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 evidence need not be local; Indianapolis is entitled to rely on findings from Milwaukee or Memphis (provided that a suitable effort is made to control for other variables). But there must be evidence; lawyers' talk is insufficient."
That "suitable effort... to control for other variables" was also important to the panel, which looked somewhat favorably upon the study conducted in 1999 by sociologist Dr. Daniel Linz, and introduced here by Annex Books attorney J. Michael Murray, which analyzed the most commonly-cited "classic" secondary effects studies and revealed their unscientific underpinnings—including the one conducted in Indianapolis in 1984.
"Instead of adducing data to support the regulation of bookstores that do not furnish on-site viewing, Indianapolis is content to belittle plaintiffs' evidence," Judge Easterbrook analyzed. "Plaintiffs offered a study by Daniel Linz, a professor at the University of California, Santa Barbara. Linz first examined the relation between crime and adult establishments in Indianapolis, using smaller units than the City had done. (Linz used census tracts, while the City used whole city blocks or larger districts.) He found little relation—and he added a time series, while the City relied on a cross section. In other words, Linz conducted the same kind of analysis as the Los Angeles study in Alameda Books, asking whether crime went up in a given census tract when new adult establishments opened, or down when they closed. Linz concluded that these openings and closings did not materially affect crime. Linz also critiqued the methodology of studies conducted by Indianapolis and other cities."
Which isn't to say that the panel fully accepted Linz's methodology or conclusions—sadly, it reaffirmed the Seventh Circuit's earlier conclusion that secondary effects studies need not meet the Supreme Court's standards for expert scientific testimony in Daubert v. Merrell Dow Pharmaceuticals—but it did conclude that its earlier opinion "differs from saying that nothing Linz writes may be credited."
"Counsel for Indianapolis conceded at oral argument that none of the studies that the City has offered in defense of its ordinance deals with the secondary effects of stores that lack private booths," Judge Easterbrook noted. "Nor do the studies assess the effects of stores that sell as little as 25% adult products. These shortcomings, plus Linz's work, call the City's justifications into question and require an evidentiary hearing at which the City must support its ordinance under the intermediate standard of Alameda Books. The Supreme Court decided [Renton v.] Playtime Theatres more than 30 years ago, and since then adult-entertainment ordinances have become common. There must be some pertinent data to be gathered, if not in Indianapolis then elsewhere... But if, as is possible, there is simply no sound basis for a conclusion that book or video stores (without live entertainment or private booths) open after midnight, or on Sunday, cause adverse secondary effects, then Indianapolis must revert to its pre-2003 system of regulation."
The panel then applied Justice Kennedy's formula for that future evidentiary hearing, ruling that the city's proposed regulation "must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact... A city may not assert that it will reduce secondary effects by reducing speech in the same proportion."
But although the panel allowed that the district court, at the evidentiary hearing, should give municipalities "the benefit of the doubt," as Justice Sandra Day O'Connor's majority opinion in Alameda and Justice Kennedy's concurrence require, the panel nonetheless made it clear that the evidence needs to focus on the effects that hours-of-operation restrictions have on secondary effects... and that's likely to be an impossibly high standard for the city to meet.
In other words, not only will that ordered evidentiary hearing likely provide an excellent exposure of Indianapolis' (and perhaps other municipalities') bankrupt anti-adult tactics, but also a thorough-going win for take-out-only adult businesses in the Seventh Circuit... and possibly beyond.
Check back to AVN.com for comments from the attorneys involved in this landmark First Amendment case.