Adult bookstore loses First Amendment fight to remain open 24 hours a day

Monday, August 2, 1999

The town of Hallie, Wis., can force adult bookstores to close at certain hours because of harmful secondary effects those businesses allegedly cause, a federal appeals court has ruled.

In March 1998, town officials passed an ordinance limiting the hours of operation of “adult-oriented establishments.” The ordinance requires adult entertainment establishments to close between 2 and 8 a.m. Monday through Friday, 3 and 8 a.m. Saturday, and 3 a.m. and noon on Sunday.

DiMa Corporation, which operates an adult bookstore in Hallie called Pure Pleasure, challenged the ordinance in federal court in April.

In October, a U.S. District Court judge ruled that the law was a content-neutral restriction that targeted the harmful secondary effects of adult businesses, rather than a content-based law that silenced freedom of expression. “Content-neutral regulations include those that restrict the time, place or manner of expression in order to ameliorate undesirable secondary effects of real expression,” the district judge wrote.

On appeal, the 7th U.S. Circuit Court of Appeals agreed that the ordinance was constitutional in DiMa Corporation v. Town of Hallie. The 7th Circuit acknowledged that the law was content-based because “the ordinance singles out adult-oriented establishments for different treatment based on the content of the materials they sell or display.”

However, the appeals court said that the ordinance could be analyzed under the relaxed standard associated with time, place and manner restrictions because the expression at issue was a certain category of expression — sexually explicit, non-obscene material.

Time, place and manner restrictions on expression are constitutional if they:

  • Are justified without reference to the content of the regulated speech.
  • Are narrowly tailored to serve a significant government interest.
  • Leave open ample alternative channels for communication.

DiMa argued that the time, place and manner restriction was unconstitutional because it was passed with reference to the content of the material. The business cited the statements of certain town officials who voted for the ordinance because of the “vice” of sexually explicit materials.

However, the 7th Circuit ruled that “the actual motives of those who enacted the ordinance are irrelevant to our First Amendment purposes.”

“It would indeed be an exercise in futility if we struck down the ordinance because of the improper motives of some Board members, and the Board was then able to immediately reenact the same ordinance but with the members all being careful to avoid stating their illegitimate motives,” the court wrote.

Instead, the appeals court noted that the ordinance was enacted to combat undesirable secondary effects allegedly associated with adult businesses, such as “spread of crime and sexually transmitted diseases, a decline in property value, or an increase in public sexual acts.”

The 7th Circuit noted that in response to a First Amendment challenge, a city must show that it had some evidence of harmful secondary effects. The appeals court found that the town of Hallie had “minimally” met its burden of proof. Town officials had relied on a published court decision in Wisconsin where a court found that another city had established evidence of secondary effects.

“Thus, we have a fairly meager record to support Hallie's justification of combating crime,” the court said. “But it is enough of a record in this case because DiMa's First Amendment challenge is limited to the ordinance's hours of operation regulation, and we have no reason to believe that this is a significant impairment of Pure Pleasure's business. DiMa has not created a record to show what sort of impact this limitation would have on its business.”

The appeals court did “caution” other cities “not to read our decision to broadly today.”

“We would expect a municipality defending a more substantial set of regulations to create a more substantial record in support of summary judgment,” the court wrote.

Randall Tigue, attorney for DiMa, said the decision was dangerous for First Amendment jurisprudence. “The opinion suggests that simply because speech is sexual in nature, [a law] automatically qualifies as a content-neutral time, place and manner restriction on speech regardless of the reason the law was enacted,” he said.

“The opinion is also dangerous for First Amendment jurisprudence because it suggests that when looking at evidence supporting a finding of adverse secondary effects, all a city has to do is to find a published opinion somewhere that says there are adverse secondary effects without examining the underlying evidence in its area,” Tigue said.

“Furthermore, the evidence in this case clearly showed that the adult bookstore caused no secondary effects,” he said. “We showed that there were fewer police calls to the adult bookstore than to any other 24-hour establishment in town.”

Joel Aberg, attorney for the town in this case, said that the “7th Circuit followed well-established constitutional precedent.”

“This was only an hours-of-operation challenge,” he said. “This is the type of business that has adverse secondary effects.”

Tigue said he would petition for full panel review by the 7th Circuit. If unsuccessful, he said he would “probably petition the U.S. Supreme Court for review.”