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A Rare Victory for a Sexually Themed Business in a Case Applying Renton Scrutiny,

in last week's Annex Books, Inc. v. City of Indianapolis, a unanimous panel decision written by moderate conservative Judge Frank Easterbrook.

A city ordinance imposed a midnight closing time for all businesses -- including ones with no on-premises video viewing or live sexual displays -- that "devote[] 25% of more of [their] space or inventory to, or obtain[] at least 25% of its revenue, from adult [i.e., sufficiently sexually themed] books, magazines, films, and devices." The city argued that such an ordinance was constitutional under the relaxed City of Renton standard of review applicable to "erogenous zoning" ordinances. But all it offered as support was speculation that the ordinance will indeed prevent crime or other secondary effects (such as lower property values), coupled with generalizations from past decisions upholding restrictions on where sexually themed businesses can locate.

The panel concluded that more evidence was necessary to support the ordinance, and the evidence had to be specifically focused on (1) the supposed effects of businesses that had no on-premises video viewing or live sexual displays, and on (2) the supposed benefits of closing time ordinances rather than location restrictions. It then remanded to the trial court "for an evidentiary hearing consistent with this opinion."

ziemer (mail):
There was another victory in the seventh circuit for an adult bookseller today, too. new albany dvd v. city of new albany.
9.10.2009 3:00pm
Philistine (mail):
In the first sentence, it might make it more clear to say the closing time was imposed on all "adult entertainment business", rather than all businesses.

I found it a bit confusing as at first I thought the ordinance applied to all business (adult or not).
9.10.2009 3:09pm
rick.felt:
Unfortunate, I think, that "adult" has come to mean "sexually themed," but that's how it goes.
9.10.2009 3:21pm
CJColucci:
So when will we hear about someone hacking into Judge Easterbrook's computer looking for porn?
9.10.2009 3:31pm
GainesvilleGuest (mail):
A rare victory for the right to be left alone.

It reminds me of your post yesterday, Professor Volokh, concerning the pros and cons of banning harmful speech. Your argument was that it might be useful to ban some types of speech that are obviously harmful (racist speech, anti-semetic speech, etc.), but that the government could not effectively determine which speech was harmful and would inevitably ban speech with value. Overall, you concluded, it was better for the government to stay out of it.

While I agree with that practical analysis. Even if the government could effectively determine which speech should be banned, it would be morally wrong to ban it. Free speech is not just good policy, it is a moral imperative. I realize others may feel different.
9.10.2009 3:36pm
U.Va. Grad:
Between Hudnut, Annex Books, and New Albany DVD, it seems Easterbrook is the go-to judge for Indiana pornography laws.
9.10.2009 4:36pm
Tim Nuccio (mail) (www):

Even if the government could effectively determine which speech should be banned, it would be morally wrong to ban it. Free speech is not just good policy, it is a moral imperative. I realize others may feel different.



Morality shouldn't even matter. The first amendment has broad protection for speech that is "immoral" to an overwhelming majority of people.

The First Amendment commands tolerance, not acceptance. Great victory today!
9.10.2009 4:36pm
ruuffles (mail) (www):

The first amendment has broad protection for speech that is "immoral" to an overwhelming majority of people.

In practice, no, not until Miller is overturned, and protection for obscenity is realized. Pretty hypocritical for the conservatives on SCOTUS to push so hard for corporate free speech and ignore Miller.
9.10.2009 5:17pm
Oren:

In practice, no, not until Miller is overturned, and protection for obscenity is realized. Pretty hypocritical for the conservatives on SCOTUS to push so hard for corporate free speech and ignore Miller.

Actually, private possession of (Miller-)obscene materials is constitutionally protected.

Since 1969, all the convictions for obscenity have involved corporate speech.
9.10.2009 5:26pm
J. Aldridge:
Morality shouldn't even matter. The first amendment has broad protection for speech that is "immoral" to an overwhelming majority of people.


Baloney. The federal first amendment of speech and of the press was only intended to prove Congress had no power to jail anyone for seditious libel where truth was of no defense when criticizing govt officials.

States were not that stupid to allow federal courts to usurp their own laws because they do not approve.
9.10.2009 5:30pm
PersonFromPorlock:
Is there a more abused word in the English language than 'adult'? Sex-obsessed adolescents don't have 'adult' tastes and neither do sex-obsessed adults.
9.10.2009 5:30pm
J. Aldridge:
The First Amendment commands tolerance, not acceptance.

I'm sure you won't have any trouble finding a nutty judge or scholar to agree but you will fail to find any historical facts to support that.
9.10.2009 5:33pm
David M. Nieporent (www):
States were not that stupid to allow federal courts to usurp their own laws because they do not approve.
Look, I thought you were humiliated enough in the Presidential Aspirants thread that you'd stop with the nutty PA Madison version of the 14th amendment.
9.10.2009 5:36pm
J. Aldridge:
Look, I thought you were humiliated enough in the Presidential Aspirants thread that you'd stop with the nutty PA Madison version of the 14th amendment.

Humiliated? Never got past you and jukeboxes convenient diversions for that to have even came close of happening. And what does the Democratic-Republican 1800 platform have to do with PA Madison: "An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states. … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents."

I know you enjoy ignoring Bingham's words "as contradistinguished from citizens of a State" and seek to slander PA Madison for drawing attention to the fact.
9.10.2009 5:46pm
ruuffles (mail) (www):

Actually, private possession of (Miller-)obscene materials is constitutionally protected.

Since 1969, all the convictions for obscenity have involved corporate speech.

The 4th Ct had an en banc a couple months back where they affirmed a conviction for receipt of obscenity between two private individuals. The person was also convicted of child porn charges, but the 4th Ct (with one dissent) declined to overturn the obscenity conviction. I'll see if I can dig it up.
9.10.2009 5:52pm
ruuffles (mail) (www):
Here, US v Whorley. pdf
9.10.2009 5:53pm
ruuffles (mail) (www):
I lied, en banc was denied with one dissent.
9.10.2009 5:54pm
neurodoc:
David M. Nieporent: Look, I thought you were humiliated enough...
J. Aldridge: Humiliated? Never got past you and jukeboxes convenient diversions for that to have even came close of happening...
Wow, the makings of an intellectual food fight here. For the benefit of the uninformed among us onlookers, care say what exactly you differ over and of what consequence that difference? Does AJ maintain the the First Amendment wasn't supposed to take in as much as it does today?
9.10.2009 5:58pm
Oren:

The 4th Ct had an en banc a couple months back where they affirmed a conviction for receipt of obscenity between two private individuals. The person was also convicted of child porn charges, but the 4th Ct (with one dissent) declined to overturn the obscenity conviction. I'll see if I can dig it up.

Ruffles, Thanks for the link! It's quite disappointing that Stanly v. Georgia isn't what it used to be.

Should I try to rescue my point that most obscenity prosecution arise from the commercial sale of pornographic materials by corporations?


Does AJ maintain the the First Amendment wasn't supposed to take in as much as it does today?

No, his consistent position is that the 14A was never meant to incorporate the BOR against the States, leaving us to the tender mercies of State Supreme Courts. Most of them would convict a ham sandwich of libel simply because they prefer pastrami.

For god's sake, we lived with "Banned in Boston" for decades despite the clear language of the MA Constitution (Art 16: "The right of free speech shall not be abridged."). When the State Supreme Courts pick themselves up from the gutter and decide to start enforcing meaningful restraint on the legislatures' continued and perverse violation of our liberty, I might consider giving that trust back to them. Until that point, I'm damned happy the Federal Courts are there to do the job.
9.10.2009 6:27pm
Ken Arromdee:
Since 1969, all the convictions for obscenity have involved corporate speech.

This is not true.
9.10.2009 6:28pm
Eugene Volokh (www):
Folks: I'm pretty sure this is not the place to have yet another rehash of the question whether the First Amendment was properly incorporated against the states.
9.10.2009 6:43pm
Oren:

Since 1969, all the convictions for obscenity have involved corporate speech.


This is not true.


That seems entirely contrary to Stanly v. Georgia (whereas the link ruffles gave was only somewhat).

At any rate, I've since replaced "all" with "most" and I think it still bears the factual observation that, by and large, obscenity prosecutions proceed against corporations that sell the stuff.

[ Not that I don't support their right to do so.]


Eugene, sorry.
9.10.2009 6:56pm
Just Dropping By (mail):
it seems Easterbrook is the go-to judge for Indiana pornography laws.

Like obscenity, I know Indiana when I see it.
9.10.2009 7:02pm
ruuffles (mail) (www):

That seems entirely contrary to Stanly v. Georgia (whereas the link ruffles gave was only somewhat).

If only Thomas went after obscenity laws with the same force he does campaign finance laws. He'd be like Justice Black.
9.10.2009 7:10pm
Judicial Economist:
Why was it argued in 2005 but decided four years later, in 2009?
9.10.2009 7:28pm
ArthurKirkland:
Perhaps the judges were studying the record with uncommon intensity?
9.10.2009 7:38pm
Judicial Economist:
Ah. Perhaps the Supreme Court could do these more quickly because at least Justice Black avoided the periodic movie screenings.
9.10.2009 7:43pm
J. Aldridge:
For god's sake, we lived with "Banned in Boston" for decades despite the clear language of the MA Constitution (Art 16: "The right of free speech shall not be abridged."). When the State Supreme Courts pick themselves up from the gutter and decide to start enforcing meaningful restraint on the legislatures' continued and perverse violation of our liberty, I might consider giving that trust back to them.

Well it was universally accepted that freedom of speech promoted the freedom to critize government without the threat of seditious libel, which is why it found itself in state constitutions. So they probably got it right. If people were as adapt of changing their laws as they are in revising constitutional words and history the world would be a lot better off!
9.10.2009 11:18pm
neurodoc:
I realize there are much broader implications to this, but for the citizens of Indianapolis the practical implications of this would be that while they would be able to buy milk after midnight, they wouldn't be able to satisfy their desire for pornography? What time were those adult bookstores to be allowed to re-open, not before the crack of dawn, when the urge for pornography might have passed? Do many adult bookstores stay open all night to accommodate those who can only shop after midnight? Is Indianapolis as righteous a place as Salt Lake City?
9.11.2009 9:44am

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