Tennessee appeals court upholds adult entertainment regulations

Tuesday, March 21, 2000

Tennessee’s Adult-Oriented Establishment Registration Act of 1998, which imposes numerous restrictions on adult businesses, does not violate the First Amendment, a state appeals court has ruled.

The law allows local governments to pass a series of regulations aimed at adult businesses, such as requiring a 6-foot buffer zone between patrons and performers and requiring that dancers perform on a heightened stage of at least 18 inches. The act prohibits dancers from appearing totally nude, requiring them to don G-strings and pasties.

The act also prohibits the sale or consumption of alcohol at adult businesses.

The Sullivan County Commission adopted the act as a county ordinance in July 1998. In November 1998, the owners of two local nude-dancing clubs, the Show Palace and the Bottoms-Up Club, filed separate actions challenging the constitutionality of the law in state court.

They contended that the law infringed on free-expression rights and chilled expressive activity.

After a trial judge consolidated the suits and ruled the law constitutional in February 1999, the club owners appealed.

On March 15 in American Show Bar Series, Inc. v. Sullivan County, the Tennessee Court of Appeals agreed with the trial judge.

The appeals court ruled that the law was content-neutral and was designed not to suppress free expression but to prevent harmful secondary effects allegedly associated with adult businesses, such as increased crime, the spread of sexually transmitted diseases and decreased property values.

The club owners contended that the county officials had no evidence that the two clubs in question had caused any harmful secondary effects.

However, the Tennessee Court of Appeals cited the 1985 U.S. Supreme Court decision City of Renton v. Playtime Theatres, Inc.: “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”

The club owners also argued that the trial court erred in excluding from evidence the statements of two state senators who spoke out against adult businesses.

However, the appeals court agreed with the trial court that those statements were “extraneous” and “irrelevant.”

The plaintiffs also challenged the provision of the act that prohibited totally nude dancing. However, the Tennessee appeals court quoted a federal trial court decision in Ohio, Threesome Entertainment v. Strittmather, for the proposition that “there is nothing in constitutional jurisprudence to suggest that patrons are entitled under the First Amendment to the maximum erotic experience possible.”

Mark Slagle, attorney for Show Palace, said he would appeal to the Tennessee Supreme Court. “A similar ordinance was recently struck down by a federal judge in Nashville,” he added. “The Tennessee Court of Appeals just simply got it wrong.”

Sharon Curtiss-Flair, public information officer for the Tennessee Attorney General’s Office, said: “We are pleased that the Tennessee Court of Appeals upheld the trial court’s verdict.”