In 2007, to address secondary effects of adult business uses, the Ohio legislature imposed restrictions on sexually oriented businesses, limiting the hours of operation of such business and instituting a “no touch” rule, disallowing nude or semi nude workers from touching other employees or patrons. Covered by the definition of sexually oriented businesses are adult book stores and adult video stores, if a substantial of significant amount of these businesses concern sexually oriented materials.
The plaintiffs challenged the legislation on numerous grounds including: that it violated the First Amendment as it was not based on sufficient evidence; that the definitions of adult book stores, adult video stores and cabaret are unconstitutionally over-broad; that the no touching prohibition violates the First Amendment; and that the plain letter of the law actually excludes adult book stores and adult video stores from the regulation.
With respect to the First Amendment claim, the Sixth Circuit in applying O’Brien (and Alameda Books ) noted that a law will be adjudged constitutional only where the legislature acted within its constitutional authority, furthered a substantial governmental interest, this interest being unrelated to the suppression of free speech, and the imposition upon First Amendment rights is no greater than necessary. Alameda Books adds a three step burden shifting analysis concerning secondary effects cases, as applied in the second prong (governmental interest). Under Alameda Books, to shift the initial burden, the government “may rely on any evidence that is ‘reasonably believed to be relevant’ for demonstrating a connection between speech and a substantial, independent government interest.” Next, it is the plaintiff’s burden to cast doubt upon the government’s rational, by providing contrary evidence or demonstrating the government’s evidence does not support their rational. If the plaintiff succeeds, the government must provide additional evidence, “renewing support for a theory that justifies its ordinance.”
Upon completion of this analysis, the court found the legislature did not violate the constitutional standards embodied in O’Brian and Alameda Books. The court found that regulating sexually oriented businesses is an act the Legislature was permitted to undertake. The court also held that there is a substantial governmental interest in regulating such uses. In applying Alameda Books, the court found the evidence relied upon by the legislature demonstrated a connection between the land use and the effects, and that the plaintiffs’ experts and evidence failed to cast the requisite doubt, thus the burden was not re-shifted to the defendants. In addition, the court found that the evidence relied upon by the Legislature was sufficient to restrict the hours of operation. The court then briefly dispensed with the third prong of O’Brien, as the plaintiffs did not contest that the regulation targeted the secondary effects, and not the First Amendment rights. Lastly, the court found the business hours restriction satisfied the narrowness requirement. In finding the regulation was narrow enough, the court rejected the plaintiffs proportionality argument, that it precluded business when business was best, reasoning that the restriction was intended to limit the secondary effects when these effects are the most prevalent, all the while only precluding the operation of business during 42 hours of a week.
The Sixth Circuit then moved the plaintiffs’ over-breadth argument, finding the definitions of adult book store, adult video store and adult cabaret where not overbroad. The Court noted that the definitions limited their scope to establishments that devoted a ‘significant’ or ‘substantial’ segment of their business to adult oriented materials. Thus, the limiting language ensured the definition covered uses exhibiting the targeted secondary effects, and precluded those which deal in sexually oriented materials, but not to a large extent. Similarly, the court rejected the argument that the definition of adult cabarets was overboard, as the limiting language in the statute, requiring the establishment regularly feature such acts, was sufficient to preclude coverage over uses which do not exhibit the secondary effects.
The court then addressed the plaintiffs’ First Amendment argument that the no touching provision was over broad. Relying on precedent, the court found that the plaintiffs did not show the provision violated the First Amendment, as the plaintiff did not demonstrate a “‘substantial number of unconstitutional applications’ of the restriction.”
Lastly, the court addressed the plaintiffs’ assertion that the definition of sexually oriented businesses excluded adult book stores and adult video stores. This language states that the definition of sexually oriented businesses “‘does not include a business solely by reason of its showing, selling, or renting materials that may depict sex.’”(italics in decision). This is in conflict, the plaintiffs asserted, with the language that sexually oriented businesses include adult book stores and adult video stores. The court found no conflict because of the limiting language in the definitions of these stores, which instituted the ‘substantial’ or ‘significant’ threshold requirement, as discussed earlier.
84 Video/Newsstand, Inc. v. Sartini, 2011 WL 3904097 (6th Cir. 7/7/2011)
The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/11a0655n-06.pdf
