The City of Indianapolis has a long and shameful history of treading on the Constitution in its own little private war on sexual free expression. Back in the 1980s, religious fundamentalists on the Indianapolis City Council teamed up with Catharine MacKinnon and passed a ludicrous anti-pornography ordinance designed to creatively outlaw adult entertainment altogether. Under that law, not only was it illegal to “traffic” in pornography, but if a woman felt injured or discriminated against and she could show that the bad guy had seen porn, she could sue the seller or the maker of the porn for damages. The theory being that if a man reads porn and then beats up a girl, the porn did it. Incredibly, the City passed the law, and the Seventh Circuit Court of Appeals, in an opinion by Judge Easterbrook, gave the City an education in First Amendment law by trashing the MacKinnon ordinance and laying down some Constitutional poetry:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be. A belief may be pernicious — the beliefs of Nazis led to the death of millions, those of the Klan to the repression of millions. A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practicing suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.
The ideas of the Klan may be propagated. Communists may speak freely and run for office. The Nazi Party may march through a city with a large Jewish population. People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. People may seek to repeal laws guaranteeing equal opportunity in employment or to revoke the constitutional amendments granting the vote to blacks and women. They may do this because “above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas . . . . American Bookseller Ass’n. Inc, v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (citations omitted)
Sadly, over the past 25 years, the City of Indianapolis has gotten no less erotophobic, and is still run by the same kind of people – those with no respect for the Constitution. This time, they were not aided by MacKinnon, but carried on in the spirit of her intellectual dishonesty by passing Indianapolis Rev. Code §807-103, which imposed unconstitutional restrictions on adult bookstores. Once again, Judge Easterbrook was there, protecting the Constitution in Annex Books, Inc. v. City of Indianapolis, ___ F.3d ___ (7th Cir. 2009).
The ordinance defined an “adult entertainment business” as any store that “devotes 25% or more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices.” (Op. at 1) While such a label might not seem like a big deal, being defined as an “adult entertainment business” comes with a penalty. An AEB must obtain a special license from the City (how’s that for “conservative” values — requiring a citizen to get a license from the government before he can sell books), can not open on Sundays, and can not be open between midnight and 10 a.m. on other days.
The City of Indianapolis, like most cities that pass these kinds of laws, tried to justify the ordinance by claiming that it was not a law against certain kinds of books, but a law designed to reduce “adverse secondary effects.” The “adverse secondary effects” doctrine states that the government can’t ban adult bookstores, pornographic movie theaters, or strip clubs because of the content of their expression (as doing so would be a clear violation of the First Amendment), but if a city wants to regulate these kinds of businesses in order to prevent the “crime” and adverse effects that they have on the city, the government can do that. Of all the ordinances I have ever seen that purport to regulate “adverse secondary effects,” I can count on one hand the number that were honestly passed for that reason. See Medway, Mass. “Adverse secondary effects” more often is just a trio of magic words that city councils have learned to recite at the right time, to give their ordinances the veneer of being passed for a proper purpose.
Judge Easterbrook held the City’s feet to the fire this time. He correctly relied upon Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) in holding that in order for the City’s ordinance to survive a challenge, “the City needs evidence that the restrictions actually have public benefits great enough to justify any curtailment of speech.” See The Alameda Books Case Comes to a Rolling Stop. In other words, if adult bookstores do really cause crime, a city can’t just ban adult bookstores to stop the crime, the city has to be creative and come up with a way to regulate the bookstores, but only in a manner that will really address the crime and which will not appreciably diminish the amount of overall speech.
For example, in Alameda Books, the city of Los Angeles required adult businesses to be dispersed – that is that they would need to be a certain distance from each other. The city’s theory being that an occasional adult bookstore would not cause problems, but a critical mass of them could create adverse secondary effects. Indianapolis relied upon this kind of dispersal evidence to justify its ordinance, which brought out a penalty flag from the Seventh Circuit.
But here the City encounters problems, for the studies on which it relies— like Justice Kennedy’s hypothetical—deal with ordinances dispersing adult businesses. The 2003 revision does not require dispersal. Instead it closes all businesses after midnight and on Sundays, and requires bright interior lights when the businesses are open. None of the studies on which the City relied before enacting the law, and none introduced in this record, concerns that kind of ordinance. Nor do the studies show that an increase in adult businesses’ operating hours is associated with more crime; the studies are simple cross-sectional analyses that leave causation up in the air. (In other words, they may show no more than that adult businesses prefer high-crime districts where rents are lower.)
More importantly, the studies to which the City points concern adult businesses that offer live sex shows, private viewing booths, or both. This circuit’s decisions likewise concern live entertainment. See, e.g., R.V.S., L.L.C. v. Rockford, 361 F.3d 402 (7th Cir. 2004) (exotic-dancing nightclubs); G.M. Enter-
prises, Inc. v. St. Joseph, 350 F.3d 631 (7th Cir. 2003) (nude dancing in bars). Three of the four plaintiffs in this suit, however, do not offer live entertainment or private viewing. They are simple book or video outlets, brought under the regulatory umbrella only because 25% or more of their sales come from sex-related materials. Until the 2003 amendments, these stores were treated the same as Barnes & Noble or Blockbuster Video. If they were associated with significant crime or disorderly conduct, it should be easy for Indianapolis to show it. But the Cityhas not offered an iota of evidence to that effect. (Op. at 3-4)
The only “evidence” that Indianapolis put forth to support its ordinance was that there were 41 arrests for “public masturbation” at one bookstore that also offered private video viewing booths. “Yet it is hard to grasp how misdemeanors committed in single-person booths justify and video retailers that lack such booths.” (Op. at 4). Easterbrook noted that the City did not offer any evidence of when the arrests occurred. For example, unless there were a significantly higher number of arrests for public masturbation on Sundays or after midnight, then how can the city justify shutting down a bookstore on Sundays and after midnight to address the adverse secondary effect of public masturbation?
If there is more misconduct at a bar than at an adult emporium, how would that justify greater legal restrictions on the bookstore—much of whose stock in trade is constitutionally protected in a way that beer and liquor are not.
Indianapolis has approached this case by assuming that any empirical study of morals offenses near any kind of adult establishment in any city justifies every possible kind of legal restriction in every city. That might be so if the rational-relation test governed, for then all a court need do is ask whether a sound justification of a law may be imagined. But because books (even of the “adult” variety) have a constitutional status different from granola and
wine, and laws requiring the closure of bookstores at night and on Sunday are likely to curtail sales, the public benefits of the restrictions must be established by evidence, and not just asserted. The evidence need not be local; Indianapolis is entitled to rely on findings from Milwaukee or Memphis (provided that a suitable effort is made to control for other variables). But there must be evidence; lawyers’ talk is insufficient. (Op. at 4-5)
Ultimately, the Seventh Circuit relied on Justice Kennedy’s concurrence in Alameda Books, which is the controlling opinion in that case. Kennedy’s concurrence holds that a regulation of adult bookstores can meet First Amendment muster if it is “likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.” 535 U.S. at 445 “[A] city must advance some basis to show that its regulation has the
purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. … A city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449.
The Seventh Circuit found that the City of Indianapolis had failed to meet this standard. Its reliance upon irrelevant evidence to justify an ordinance that seemed quite likely to diminish the quantity and accessibility of speech rendered it unconstitutional.
Hat Tip to Cary Wiggins. And a big shout out to Michael Murray, Esq. who argued the case for the bookstores.
