City’s licensing law for adult clubs is unconstitutional, federal appeals panel says

Friday, August 25, 2000

A Georgia city’s adult business ordinance violates the First Amendment
because it does not contain adequate procedural safeguards, a federal appeals
court panel has ruled.

In 1997, the city of Warner Robins passed a licensing law for adult
businesses, restricting the sale of alcohol at nude-dancing establishments.

Artistic Entertainment Inc., which operates a nude-dancing club called
Teasers, sued in state court, contending that the law infringes on its
free-expression rights.

The city removed the action to federal court.

In February 1998, U.S. District Judge Hugh Lawson granted Artistic
Entertainment a preliminary injunction. However, in August 1998, a three-judge
panel of the 11th U.S. Circuit Court of Appeals reversed the preliminary
injunction and sent the case back to the district court.

In December 1999, Lawson granted summary judgment to the city. The
club then appealed to the 11th Circuit.

This week, a three-judge panel of the 11th Circuit reversed the lower
court in Artistic Entertainment, Inc. v. City of
Warner Robins

The panel rejected most of the club’s First Amendment arguments,
including one that the licensing ordinance was a content-based law designed to
suppress free expression. Instead, the panel determined the law was a
content-neutral method of combating the harmful secondary effects allegedly
caused by adult businesses.

The club also argued that the city did not have sufficient evidence to
assume that adult businesses would cause secondary effects, such as increased
crime. However, the panel wrote in its Aug. 23 ruling that “the government need
only have a ‘reasonable basis’ … for believing that its policy will
indeed further a legitimate interest.”

Artistic Entertainment had also argued that the ordinance was
unconstitutionally vague because it exempted mainstream or traditional theaters
from regulation. The panel rejected this argument.

However, the panel accepted Artistic Entertainment’s final argument
— that the ordinance was an unconstitutional prior restraint on
expression. The business argued the law violated the First Amendment because it
did not contain adequate procedural safeguards to ensure that the city would
issue or deny a license.

The Warner Robins ordinance provides that the city will make a
decision on a license application within 45 days. However, the ordinance does
not provide that a business may continue to operate if the city fails to meet
its deadline.

Although the ordinance “imposes a deadline on the City to consider an
adult business license application, it does not guarantee the adult business
owner the right to begin expressive activities within a brief, fixed period of
time,” the panel wrote.

Cary Wiggins, attorney for Artistic Entertainment, said he was
“ecstatic” with the panel’s decision.

“This is a huge victory for adult businesses,” Wiggins said. “It is
significant because it shows cities and counties that the 11th Circuit is
serious about the prior restraint issue.

“We would have loved to slam the city on the other issues, but this
ruling means that the city will have to fix this infirm section of its
ordinance,” he said “We are looking forward to a trial on damages.”

Calls to the attorneys for the city were not returned.

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