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Constitutional Law

: Meeting the Sin Laws

Irrebuttably rebuttable

By C.S. Wiggins

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From the Tenth Circuit Court of Appeals comes this decision.

The appeal concerns The Lion's Den, which opened at a rest stop off of Interstate 70 in Dickinson County, Kansas in September 2003. According to the opinion, The Lion's Den is probably the first sexually oriented business in the County in at least 25 years, and it may be the first such business in County history. "It is located just off an exit ramp on I-70, in an unincorporated portion of the County. The total population of the unincorporated portions of Dickinson County is small, numbering just over six thousand people. Adult bookstores located near highway exit ramps rely on business from passing interstate traffic. The store's inventory is almost entirely adult-oriented, and consists of a variety of sexual devices and sexually explicit magazines, videos, and DVDs." That is the backdrop.

If you're a fan of the First Amendment, you'll enjoy reading the opinion. You see, once the County caught wind of The Lion's Den, it scrambled to keep the store out of business. Or so it seems. It adopted a speech-restricting ordinance which banned The Lion's Den from operating a sexually-oriented book and video store at its location. Mind you, the County did not say that it was trying to close the store; that purpose would have sunk the law. Instead the County stated its purpose was to regulate the so-called "secondary effects" of adult businesses, including to: "(1) protect and preserve the health, safety, and welfare of the patrons of sexually oriented businesses as well as the citizens of the County; (2) limit unlawful sexual activities; (3) minimize crime; and (4) preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight."

Adopting ordinances to address the secondary effects -- as opposed to the primary effects -- of speech is the preferred (albeit controversial) method for legislating against adult entertainment. But how do you know what the legislature's real motive is? After all, legislators occasionally say things just because they think it's what the public (including the courts) wants to hear. And courts don't like to delve into legislative motive. So establishing an illicit legislative motive is tough.

The legislature is not "free and clear" yet, though. Under Supreme Court jurisprudence, to justify a law restricting speech under a 'secondary effects' rationale, the legislature must rely on some evidence to believe that the law will curb these adverse secondary effects. In this case

the studies relied upon include a wide variety of methodologies, both anecdotal and empirical, and are not easily summarized. Equally diverse are the studies' findings. Although most, if not all, find that adult businesses trigger at least some secondary effects in surrounding areas, the findings rest on a number of factors, including: the type of neighborhood in which the sexually oriented businesses are located, the concentration of sexually oriented businesses, and the nature of the sexually oriented business itself. All of the studies relied upon by the Board examine the secondary effects of sexually oriented businesses located in urban environments; none examine businesses situated in an entirely rural area. To hold that legislators may reasonably rely on those studies to regulate a single adult bookstore, located on a highway pullout far from any business or residential area within the County, would be to abdicate our "independent judgment" entirely. Such a holding would require complete deference to a local government's reliance on prepackaged secondary effects studies from other jurisdictions to regulate any single sexually oriented business, of any type, located in any setting. Our review is deferential, but the evidentiary basis for the Second Ordinance must establish some minimal connection to the secondary effects attendant to Dickinson County's existing sexually oriented business(es). Based on the record before us, we conclude that a material dispute of fact exists as to whether the Board has established such a connection.

Judge Ebel concurred in the judgment (and the majority joined):

The majority would conclude that the County's pre-packaged studies and case law are insufficient to meet the County's initial evidentiary burden because the County's evidence concerns local governments' experiences with sexually oriented businesses in an urban setting, while the County is a rural, sparsely populated area. This may be a valid distinction to draw at the later stages of the Alameda Books' analysis. Notwithstanding our obligation in the First Amendment context "to make an independent examination of the record in its entirety to ensure the challenged regulation does not improperly limit expressive interests," Z.J. Gifts, 136 F.3d at 685, I do not think that this rural/urban distinction is sufficient at the initial stage of our analysis.

It turns out that the First Amendment is not circumvented by laudable motives and prepackaged studies. That's probably why I can type this.

Full post as published by Meeting the Sin Laws on July 12, 2007 (boomark / email).