Tennessee House passes bill regulating sexually oriented businesses

Tuesday, May 5, 1998

Tennessee has become the latest state to enact legislation designed to crack down on sexually-oriented businesses, including adult bookstores and movie theatres, escort agencies, massage parlors and strip clubs.

The state House of Representatives on May 1 unanimously approved the Adult-Oriented Establishment Registration Act, sending it to the governor's office for signing.

In April the Tennessee Senate overwhelmingly supported the bill.

Sen. Keith Jordan introduced the measure (SB 1613) to help cities and counties to combat the allegedly harmful “secondary” effects caused by adult businesses. In particular, Jordan designed the bill to help those counties and cities that do not already have “regulatory schemes for adult-oriented establishments and sexually-oriented businesses.”

The law says that “if a city or other political subdivision in this state chooses to enact and enforce its own regulatory scheme for adult-oriented establishments and sexually oriented businesses, then the provisions … shall not apply within the jurisdiction of such city or other political subdivision.”

Thus, the law will not affect many larger cities, such as Nashville, which have ordinances already on the books.

At least one First Amendment attorney who practices in this area of the law finds First Amendment problems with the act.

John Herbison, a Tennessee attorney who represents several adult businesses, said: “There are some serious constitutional problems with this law. Several of the provisions, especially in the definitions section, are unconstitutionally vague.”

Herbison found especially troublesome the definitions of “adult-oriented establishments” and “employee” in the law which he said were “way too broad.”The legislation states “there is convincing documented evidence that sexually-oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and the downgrading of property values.”

The act contains numerous provisions, some of which:

  • prohibit performers from appearing “in a state of full nudity”;
  • establish a six-foot buffer zone between patron and performer;
  • provide that all performances occur 18 inches above the “immediate floor level”;
  • set up extensive licensing and permit requirements for adult business operators and performers.

The legislation states “it is not the intent of the this act to suppress speech activities protected by the First Amendment, but to enact a content neutral act which addresses the secondary effects of sexually-oriented businesses.”

Herbison also criticized the legislature for not providing enough procedural safeguards to ensure that licenses for adult businesses are granted to those who qualify.

Herbison said the unanimous vote in support of the bill did not surprise him. “Because it is an election year legislators are not going to hold such a bill, even though it contains sloppy draftsmanship, up to the critical scrutiny it deserves.”

A call placed to Sen. Jordan was not returned.