Federal judge rejects adult store’s challenge to Mo. county ordinance

Monday, April 13, 2009

A recent federal court decision highlights a recurring — and unsettled — First Amendment question: Do all adult businesses cause the same harmful secondary effects?

The case involves a Jackson County, Mo., ordinance that regulates adult businesses. Enlightened Reading Inc., which does business as Erotic City, challenged the ordinance in federal court. Erotic City is a retail store in Jackson County that sells various novelties and lingerie, including some sexually explicit material.

According to Enlightened Reading, the county’s ordinance is unconstitutional as applied to retail stores that only sell and rent material. County officials, the company contended, failed to take into account the difference between an establishment like Erotic City that offers only “off-site” adult entertainment — i.e., where customers enter, purchase a product and leave — and a business that offers “on-site” entertainment — i.e., where customers view nude dancing or other adult performances and remain on the premises for a longer period.

Enlightened Reading said that when the county adopted the ordinance, it relied on secondary-effects studies done in other jurisdictions that focused on on-site adult businesses. The company attempted to rely on a decision from the 5th U.S. Circuit Court of Appeals, Encore Videos v. City of San Antonio (2003), which said there was a distinction between on-site and off-site businesses. The rationale was that customers of off-site businesses do not linger on the premises long enough to cause harmful secondary effects.

Unfortunately for Erotic City, federal district courts in Missouri must follow the law of the 8th Circuit, not the 5th Circuit. Chief Judge Fernando J. Gaitan of the U.S. District Court for the Western District of Missouri noted in his March 24 opinion in Enlightened Reading v. Jackson County that 5th Circuit case law is at odds with 8th Circuit law.

“While the Encore Videos court (the 5th Circuit) was free to adopt its own interpretation regarding this distinction, this Court must follow the binding authority in this circuit,” Gaitan wrote. He noted that that the 8th Circuit had rejected the distinction between on-site and off-site adult businesses in ILQ Investments v. City of Rochester (1994).

Gaitan also wrote that the Jackson County ordinance was constitutional because the county did rely on secondary-effects studies and judicial opinions from other jurisdictions that dealt with off-site adult businesses.

Gaitan then went on to find that “the ordinance does not seek to suppress speech or expression, directly or indirectly” and that the “county makes clear that it does not intend to suppress speech or expression, but rather seeks to combat harmful effects from such businesses.”

Whether this decision will be appealed remains to be seen, but the case aptly illustrates a division in the federal circuit courts on an important issue — often an effective predictor for possible Supreme Court review.

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