Ruling illustrates danger of secondary-effects doctrine

Tuesday, September 13, 2011

A recent federal appeals court decision supporting restrictions on nude-dancing establishments in Ohio shows the danger of the secondary-effects doctrine.

A three-judge panel of the 6th U.S. Circuit Court of Appeals unanimously upheld in 84 Video/Newsstand, Inc. v. Sartini a provision that regulates the hours of operation of such businesses. The panel also upheld a so-called “no touch” provision that limits physical contact between performers and patrons.

Ohio officials contended that the provisions were designed to protect communities from the harmful, adverse effects — called secondary effects — allegedly associated with adult businesses. The most commonly cited secondary effects are increased crime and decreased property values.

The 6th Circuit applied a test from the U.S. Supreme Court’s 2002 decision in City of Los Angeles v. Alameda Books (2002). Under that test, a city or government entity can rely on evidence that is “reasonably believed to be relevant” for demonstrating secondary effects. This evidence can include newspaper articles, prior judicial decisions, anecdotal evidence, police reports other material.

The next part of the test gives the adult-business operators the supposed opportunity to “cast direct doubt” on the government entity’s evidence about secondary effects. If the adult-business litigants do manage to cast doubt on the government’s evidence, then the government must supplement the record with more evidence supporting its theory of secondary effects.

The problem with the 6th Circuit’s decision in the 84 Video case is that it puts an impossible burden on adult businesses with respect to casting direct doubt on the city’s evidence.

The plaintiffs in 84 Video presented expert testimony from Dr. Daniel Linz that debunked several secondary-effects studies relied on by the Ohio Legislature. But the 6th Circuit said the plaintiffs still failed to raise direct doubt because “Linz’s testimony and studies fail to cast doubt on the entire body of evidence relied on by the General Assembly … including prior court decisions, news reports and anecdotal testimony by law enforcement officials and others.”

In reality, the 6th Circuit creates an all-but-impossible burden on adult-business litigants, as there is little chance they can challenge all prior court decisions, news reports and police testimony.

The 6th Circuit’s decision has given government officials a primary way — by use of the secondary-effects doctrine — to place more and more restrictions on adult expression involving consenting adults.

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