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Kudos to Posner on Secondary Effects

Hat tip to my good friend and First Amendment Lawyer’s Association brother Cary Wiggins over at Meeting the Sin Laws:

Posner, for whom Mr. Wiggins and I share a common affinity, just authored an opinion invalidating the Village of Washington Park’s ban on alcohol in adult entertainment establishments:

Because the purpose of the ban on alcohol consumption in newly licensed establishments was to prevent competition,strict scrutiny applies. And based on its anti-competitive purpose, the ban is not “necessary to serve a compelling state interest and narrowly drawn to that end.” See Joelner I, 378 F.3d at 624. We therefore conclude that the alcohol ban and the licensing scheme as a whole (from Nos. 06-2901 & 06-3252 9which the alcohol ban is not severable) are unconstitutional on their face.

We add that even if the Village were indeed attempting to combat secondary effects with its alcohol ban, and intermediate scrutiny thus applied, the Ordinance could not survive. The Village again relies on Ben’s Bar and argues that because we there determined that a ban on alcohol in both newly and currently licensed adult entertainment establishments passed muster under intermediate scrutiny, see Ben’s Bar, 316 F.3d at 726-28, Ordinance01-63’s ban on alcohol in only newly licensed establishments can not possibly be considered less narrowly tailored.

But the Village’s reasoning is flawed. The Supreme Court has repeatedly recognized that an underinclusive regulatory scheme is not narrowly tailored. See Rubin v.Coors Brewing Co., 514 U.S. 476, 489 (1995) (concluding that “exemptions and inconsistencies bring into question the purpose of the labeling ban . . . [and] ensure[ ] that the labeling ban will fail to achieve that end”); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425(1993) (determining that an ordinance was unconstitutional when, among other reasons, “the city has asserted an interest in esthetics, but respondent publishers’ newsracks are no greater an eyesore than the newsracks permitted to remain on [the city’s] sidewalks”). Here, there is similar underinclusiveness that would be fatal to the intermediate scrutiny-narrow tailoring analysis: the ordinance permanently insulates eight concentrated establishments from the alcohol ban and leaves alcohol use at those establishments otherwise entirely unrestricted.In fact, in Ben’s Bar we observed that “as a practical matter, a complete ban of alcohol on the premises of adult entertainment establishments is the only way the Village can advance that interest.” Ben’s Bar, 316 F.3d at 728 (source).

Perhaps the 7th is the “new 11th” now. Hooray for Richard Posner!

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