LEGAL NEWS: Adult Bookstores Win Freedom of Speech Fight with City of Indianapolis (Scrutiny)

From, January 28th 2014:


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.

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.”