Legalese Column: Appellate Decisions Revisit Legal Issues of Take-Home Video Stores

Judging apples and oranges

Take-home-only video stores create legal issues all their own when it comes to local adult-business regulations, especially in matters of zoning—as seen recently in a pair of federal appellate cases. The tension here is between the First Amendment and the crusaders against erotic speech—who transparently are trying to eliminate it altogether.

Ever since the courts developed the “content-neutral/secondary-effects” fiction that it was constitutionally acceptable to apply special zoning rules to purveyors of erotic fare, the controversy has existed. Such businesses could be relegated to remote areas so as to not damage pristine neighborhoods.

The secondary-effects argument grew out of a time when adult businesses were, in fact, “seedy.” Adult bookstores were named the likes of “Mr. Peeper’s Glory Hole”; adult motion picture theaters were generally run-down theaters, left in the dust by the rise of the multiplex; adult cabarets were dives, patronized by bikers (before the day of the gentrified Harley riders). It was easy to establish that those businesses were a detriment to the environs—because they were.

Much has changed. Adult theaters became non-existent by the 1990s; strip clubs went upscale; and adult video had become a common feature of mom-and-pop video stores (thanks to Blockbuster’s rejection of adult fare).
And more specifically, customers of take-home-only video stores drop in, browse a little, make a purchase or two and go home—nothing more, no mischief.

Unfortunately the courts, for the most part, were unwilling to go beyond faulty generalizations: Some categories of adult businesses have been studied and shown to cause secondary effects; therefore, the courts said, all adult businesses cause secondary effects.

There was one case in 1991 where the court saw the difference. The Washington Supreme Court said that studies failed to justify application of adult zoning regulations to “take-home” businesses. (World Wide Video, Inc. v. City of Tukwila, 117 Wash2d 382, 816 P.2d 18, 1991) But three years later, the federal Court of Appeals in Saint Louis instead followed the above-noted logical fallacy, holding that applying adult-zoning regulations to take-home stores was no problem. (ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 [8th Cir. 1994])
One would think that the Supreme Court case of Alameda Books in 2002 would have changed the legal landscape. (City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 [2002])

In that case, for the first time opponents of adult zoning regulations were expressly allowed to challenge both the studies allegedly supporting the assumptions justifying the ordinances as well as the assumptions themselves. Opponents could produce experts to pick apart the cities’ studies and explain the defects in them—and there were plenty of defects. They also could generate their own studies, demonstrating that the city’s assumptions were faulty.

Capitalizing on Alameda Books, opponents of San Antonio’s adult zoning scheme in 2002 successfully persuaded the federal court of appeals in New Orleans in the case of Encore Videos that the ordinance could not be applied to take-home-only businesses. But, on rehearing, the court contracted the decision; it did not change the result, but it effectively limited the decision to its own facts. (Encore Videos, Inc. v. City of San Antonio, 310 F.3d 812 [5th Cir. 2002], on rehearing, 330 F.3d 288 [2003])

Then, the post-Alameda world hit bottom in the reputedly liberal Ninth Circuit Court of Appeals in San Francisco. The opponents of a Spokane, Wash., ordinance did an excellent job of demolishing the city’s studies and then producing better studies of their own to the contrary. However, the court managed to find one bit of secondary-effects evidence that was not contradictable. At the City Council hearing considering the ordinance, one citizen had testified that he saw litter near the store in the form of pornographic video packaging. The plaintiff’s scientific survey established that the business was not a litter problem. However, the court held that “anecdotal evidence” could be considered, notwithstanding its scientific invalidity. How could anyone ever prove that the witness in question did not see litter on the day he was there? (World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 [9th Cir. 2004]).

Recently, two cases from the federal Court of Appeals in Chicago took the Ninth Circuit to task in the application of adult ordinances to retail-only businesses in cases from two Indiana cities, Indianapolis and New Albany. In each case, the trial court had upheld the ordinance. Both were reversed, the court instructing the trial court to reconsider the matter and properly apply Alameda Books. Presumably, the trial courts each will do the right thing. (Annex Books, Inc. v. City of Indianapolis, Ind., ___ F.3d ___, 2009 WL 2855813 (7th Cir., September 3, 2009); New Albany DVD, LLC v. City of New Albany, Ind., ___ F.3d ___, 2009 WL 2882817 [7th Cir., September 10, 2009])

Unfortunately, courts always have difficulty authorizing pornography under any circumstances, and the take-home business decisions cited above are paradigmatic. The two most recent cases took about four years to decide; in one of them, the court did not hand down its opinion until after the challengers had gone to the Supreme Court, asking for an order that the case be decided. The judge who wrote the opinion was a veteran of the Seventh Circuit, reputed as an intellectual conservative, apparently reluctant to do anything to potentially authorize pornography.

The courts’ tendency toward faulty generalizations in these cases is a sad commentary on our judiciary and our society. It is a classic fallacy of logic. But where sex (read: religion) is involved, logic is jettisoned.

Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com.

This article originally ran in the November issue of AVN.