The Tennessee Adult-Oriented Establishment Registration Act of 1988 (Tenn. Code Ann.,§ 7-51-1101 et seq., ) a county-option law, was adopted by Shelby County to address the negative secondary effects associated with adult or sexually oriented businesses. The County adopted the Act by ordinance and provided for a 120-day “grace period” in which affected businesses could comply with the new regime. The plaintiffs, who operated a “substantial fraction” of the nightclubs in the City of Memphis, challenged the Act before the 120-day grace period expired. The Act regulated all establishments that conformed to a statutory definition of “adult-oriented establishment” by requiring all businesses subject to the Act, as well as their employees and entertainers, to obtain a license or a permit. Second, the Act regulated the manner in which entertainment could be provided by adult-oriented establishments – it prohibited nudity, certain sexual activities, certain kinds of physical contact, and required that all performances take place on a stage at least 18 inches above floor level and that all performers stay at least six feet away from customers and other performers. The plaintiffs claimed that the Act was unconstitutional on four grounds. First, the definitions of “adult cabaret,” “adult-oriented establishment,” and “adult entertainment” rendered the Act unconstitutionally overbroad, and second, that these definitions were vague. Third, the plaintiffs argued that prohibitions on certain kind of physical contact on the premises of an adult-oriented establishment were overbroad, and lastly, they asserted that the Act would substantially diminish the availability of adult speech in Memphis. After a preliminary injunction hearing, the district court denied the requested injunction on the basis that the plaintiffs did not demonstrate a substantial likelihood of success on the merits.
The Sixth Circuit Court of appeals affirmed. Dealing with the alleged flaws in the definitions, the Court noted that facial invalidation for overbreadth is to be deployed sparingly and “only as a last resort.” The court noted that “[n]either this court nor the Supreme Court has required that regulatory efforts to address secondary effects of sexually oriented businesses must be confined to establishments that accord unequivocal priority to adult entertainment over all other business uses.” The definition of “adult-oriented establishment” was “readily susceptible” to the narrowing construction that defendants advocated. The no-touching and spacial limits/buffer zone did not impermissibly burden expression and could not form a basis for a successful overbreadth attack. The court was “equally unpersuaded that the Act’s provisions [were] ‘so onerous’ as to cause the majority of Memphis’s nightclubs to ‘cease presenting adult entertainment entirely.’”
See, Entertainment Prod., Inc. v. Shelby County, Tenn., 2009 WL 4061704 (6th Cir., Tenn. 11/25/2009)
The opinion is available at: http://www.ca6.uscourts.gov/opinions.pdf/09a0406p-06.pdf
This summary is based on an abstract appears in the December 2, 2009 IMLA News. For more information about IMLA visit: www.imla.org
