Adult bookstores win legal fight with Indianapolis
A federal court has struck down an Indianapolis ordinance limiting the hours of adult bookstores, the latest in a decades-long series of local regulatory and law enforcement maneuvers taking aim at adult businesses.
The U.S. Court of Appeals for the 7th Circuit overturned a district court ruling that upheld a 2003 city ordinance requiring adult bookstores to be closed from midnight to 10 a.m. daily and all day on Sundays.
The federal ruling Friday came in a challenge mounted by four businesses affected by the city rules: Annex Books, Keystone Video and News, Lafayette Video & News and New Flicks, which is now out of business.
“This is an important victory for freedom of speech under the First Amendment,” said J. Michael Murray, a Cleveland attorney representing the bookstores.
“When a government singles out a business by its content, stores that sell a certain type of literature, magazines and DVDs, it implicates the First Amendment, and the city has to justify that the ordinance furthers a legitimate government interest. ... In this case, the city could not meet that burden.”
Employees who answered the phone at the three Indianapolis stores said they could not comment and directed The Indianapolis Star to corporate offices. Efforts to contact corporate representatives were unsuccessful.
City spokesman Marc Lotter said officials are reviewing the decision and examining their options. He declined to comment on what the city might do next.
Legal experts said the city can accept the decision, seek a review by the full 7th Circuit or ask the U.S. Supreme Court to take up the case.
The 7th Circuit ruling also ordered a federal judge in Indianapolis to issue an injunction barring enforcement of the ordinance. That means the bookstores may soon be open 24 hours a day, seven days a week.
In oral arguments Jan. 15, an attorney for the city said the restrictions were important to reducing crime and other problems. But the three-judge panel didn’t buy that argument, calling the city’s evidence “weak.”
The judges said the decrease that city officials cited in armed robberies during the time adult bookstores were closed was small and did not account for other possible variables.
“The data do not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores, pharmacies and convenience stores that are not subject to the closing hours imposed on bookstores,” the opinion stated.
“And most of the harm of armed robberies falls on the bookstores (and their patrons) rather than on strangers.”
The U.S. Supreme Court has ruled that state and local governments “may regulate adult establishments by using time, place and manner restrictions to reduce the secondary effects of those businesses on third parties” but may not regulate them “to restrict the dissemination of speech disapproved by local residents.”
The federal court decision said the same secondary-effects argument the city made to support restricting adult bookstore hours could be made to prohibit newspapers from publishing and selling copies on Sunday. They noted it could be argued that Sunday delivery increases the potential for traffic accidents and robberies of delivery personnel and that readers can get all their information on the Internet.
“The lawyer representing Indianapolis was shocked at the idea, however; he proclaimed that the city could not do such a thing consistent with the First Amendment,” the judges wrote, adding “the harms to third parties caused by a newspaper likely exceed those caused by an adult bookstore.”
The real difference, the judges said, “lies in the content of the reading material.”
“Indianapolis likes G-rated newspapers,” they wrote, “but not sexually oriented books, magazines and movies.”
Indianapolis is not alone in using zoning and other limits in an effort to squeeze adult businesses out of existence, said Cincinnati attorney H. Louis Sirkin, who has defended the free speech and constitutional rights of adult businesses, museums, artists and activists for more than 40 years.
The 2003 ordinance was far from the first salvo in Indianapolis.
The Star’s files include scores of stories dating to the early 1980s — spanning the administrations of William Hudnut and Stephen Goldsmith — that detail law enforcement, zoning and other efforts to shut down adult businesses.
“The only reason they want to make them close is to cut down on income, which indirectly can cause a store to go out of business,” Sirkin said. “There is no more danger from an adult bookstore than from a convenience store or gas station that operates in the wee hours of the night.”
Sirkin said some other federal appeals court decisions have upheld similar regulations in other cities and states.
“The 7th Circuit got it right,” he said. “It is so refreshing to see a court look at it and call it like it is. ... Maybe it will be a turning point other courts will look at for direction.”
Government restrictions add to the struggles adult businesses already face from Internet competition, said Winston Hines, a real estate broker who helps adult bookstores and clubs find locations across the country.
“Has the Internet hurt brick-and-mortar establishments? Yes, of course. It follows the same general pattern with all retail businesses,” Hines said. “You will have the weaker stores close up for economic reasons, while others will prosper or survive just like every other retail operation.”
Still, Hines predicted, adult bookstores are around to stay.
“People like the tangibility and three-dimensionality of going into an adult bookstore,” he said, “as opposed to the rather distant perception you get from the Internet.”
Until that dynamic changes, Hines and others predicted, the legal back-and-forth will continue.
Call Star reporter Tim Evans at (317) 444-6204. Follow him on Twitter: @starwatchtim.
Newspaper analogy in opinion:
The following excerpt reveals insight into the ruling by a panel of the U.S. Court of Appeals for the 7th Circuit. The judges rejected an Indianapolis ordinance restricting hours of adult bookstores. To test the city’s proposition that bookstores contribute to crime and that any delay for buyers in obtaining adult materials does not cause a financial loss for the bookstores, the three-judge panel raised a hypothetical question:
Suppose Indianapolis were to prohibit the distribution of newspapers on Sundays. (Just newspapers: our hypothetical law differs from a general Sunday closing statute.)
Closure could achieve multiple benefits, including a reduction in the number of traffic accidents (newspapers generate lots of traffic because trucks deliver newsprint to plants and printed papers throughout the region; home delivery carriers may drive their own cars); a reduction in robberies of paper deliverers, who may be on the street when few others are awake to protect them; and a reduction in the newspaper’s carbon footprint and other pollutants. All the news (and ads) now in the Sunday paper could appear in Monday’s paper, so readers would retain access, and anyone who wants up-to-the-minute news could get it on the Internet while avoiding accidents, robberies, and pollution. The lawyer representing Indianapolis was shocked at the idea, however; he proclaimed that the City could not do such a thing consistent with the First Amendment.
What is the difference between preventing a newspaper from selling paper copies on Sunday (or before 10 a.m.) and preventing an adult bookstore from selling paper copies on Sunday (or before 10)? Not secondary effects: the harms to third parties caused by a newspaper likely exceed those caused by an adult bookstore. The difference lies in the content of the reading material. Indianapolis likes G-rated newspapers but not sexually oriented books, magazines, and movies.
Source: United States Court of Appeals for the 7th Circuit, Annex Books Inc. et al v. City of Indianapolis, Jan. 24, 2014.