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The Seventh Rides Again in Support of the First Amendment

pornoslaviaThe Alameda Books rule boils down to this: If a city wants to ban a First Amendment protected business, it can only do so if it has evidence that its regulations actually might help do something about adverse secondary effects, the evidence can’t be complete bullshit, and the regulation can’t negatively impact the quality and amount of speech as a proxy for regulating the secondary effects.

There was a period of time in which courts did not seem to be embracing the Alameda books case. As simple and as light of a rule as it laid down, conservative judges were looking for any unprincipled way they could to give cities and towns a pass. Judge Easterbrook, the hero of American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) has, in a pair of recent decisions, made it clear that in Illinois, Indiana, and Wisconsin, Alameda Books is alive and well.

Last week, I reported on a recent 7th Circuit decision affirming the principles laid down in Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). In that posting, I discussed the Annex Books case, and how the City of Indianapolis is going to need to go back to the drawing board in its efforts to ban porn.

A city with a bit of a smaller stature, New Albany, Indiana just got its own Constitutional smackdown from the same court (and the same judge). Like many cities that catch Christ Fever, and decide to try and ban smut from their fair streets, New Albany knew that it couldn’t just outlaw porn shops. Accordingly, it made sure to repeat the magic words “adverse secondary effects.” However, like most cities, they didn’t come up with any scientific studies backing up their regulations, and showing how they might mitigate these phantom adverse secondary effects. New Albany’s hobgoblin “secondary effects” were crime and “litter.”

Apparently, the City of New Albany expected the court to believe that an adult bookstore that was closer to a church was more likely to cause crime than a store far from a church. Similarly, the city brought in a few citizens who anecdotally told stories of finding pornographic litter around adult bookstores. To “prove” that these effects would be mitigated by new regulations, New Albany trotted out some old studies of porn theaters, failing to see how a business that sells porn for take-out purposes might be a completely different animal.

In the district court, New Albany relied on studies conducted in cities across the country. Many of these show that a concentration of adult businesses in a part of a city is associated with higher crime and lower property values nearby. As we observed in Annex Books, Inc. v. Indianapolis, No. 05-1926 (7th Cir. Sept. 3, 2009), however, these studies principally reflect the effects of adult businesses that offer live entertainment or peep shows; they do not necessarily demonstrate that businesses selling books and DVDs have the same consequences for morals offenses (prostitution, lewd exhibition) or other kinds of crime. New Albany’s own expert “conceded that he knows of no research that shows . . . effects for various subclasses of businesses,” such as plaintiff’s retail-only store. 362 F. Supp. 2d at 1021.

Recognizing that prior studies had lumped bookstores, peep shows, and exotic dancing establishments together, New Albany offered some anecdotal justifications in the district court. It cited testimony in some earlier cases by people complaining about pornographic litter near adult bookstores, and it suggested that these stores may expose their customers to thefts. The former line of argument rests on the fact that some customers are bound to throw away wrappers, which may have images inappropriate for children. The “theft” line of argument starts with the premise that many customers of adult establishments pay in cash, which makes them a target for thieves. (Op. at 5-6)

The court trashed the city’s arguments, calling for customers to make their own risk assessments.

The norm under the first amendment is that government must combat harm to readers with disclosures rather than prohibitions of speech. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986). Just as there is no hecklers’ veto over speech, there is no “thieves’ veto.” The police must protect the readers from the hecklers or thieves, rather than ease their workload by forbidding the speech. (Op. at 6)

As far as the City’s “litter” argument goes, the Court held that it was “perilously close” to violating the rule in Alameda Books that a city can’t reduce adverse secondary effects merely by reducing speech. If you sell 100 porn magazines and this produces 10 pieces of litter, it is no trick to reduce the litter by reducing the number of magazines sold. However, this is constitutionally impermissible.

The only way to cut litter by 10% may be to reduce sales by 10%, and such a justification would fail under [Alameda Books].(Op. at 9)

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