The Town of Smithtown enacted an adult use ordinance in 1994 limiting the use to three districts in the Town and amortizing out adult entertainment uses in all other districts in the Town by Jan. 1, 1998. TJS challenged the law as a violation of free speech, with specific emphasis on whether there are a reasonable number of alternative locations for these businesses. The Town offered a list of 35 sites that were available for adult entertainment businesses at the time the ordinance was passed. The Second Circuit said that while other courts examine the availability of locations at the time of enactment of the ordinance, this is but one consideration and that the conditions present at the time of the challenge. The Court explained that the First Amendment does not permit a court to disregard the post-enactment change in the avenues of communication; many or all alternative sites could disappear, silencing the speaker. While noting that this may open up ordinances to attack, the Court said that this would only be so if there were changes in the community that demanded change. The court remanded the matter for further review.
TJS of New York v. Town of Smithtown, 568 F.3d 17, 2010 WL 786581 (2nd Cir. 3/10/2010).
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