Posted by: Patricia Salkin | October 2, 2019

Eighth Circuit Court of Appeals Holds Adult-Oriented Businesses Could Not State a Claim Under the First Amendment for Protected Speech

This post was authored by Matthew Loeser, Esq.

After the city building inspector refused to issue a certificate of occupancy that was required to open a business, Adam and Eve Jonesboro, LLC filed suit pursuant to 42 U.S.C. § 1983 alleging that the Act violated its First, Fifth, and Fourteenth Amendment rights and similar Arkansas rights. In this case, Adam and Eve appealed from the district court’s judgment upholding the constitutionality of an Arkansas zoning law (Act 387 of 2007) that prevented adult-oriented businesses from opening within 1,000 feet of schools and other places frequented by children.

The parties stipulated that “Adam and Eve agreed not to sell pornographic DVDs, books, and magazines.” Counsel also repeatedly stressed that the “store in Jonesboro has not, does not, and will not sell DVDs, videos, books, literature, periodicals, posters of any kind.” Furthermore, Adam and Eve stated in this case that there were “no videos, there are no movie booths, no movie screens, and no live entertainment at the Appellant’s store.” Because there was admittedly no speech to protect, Adam and Eve’s claim that the district court applied the wrong standard of review to its free speech claim failed.

Adam and Eve next contended that the Act was impermissibly vague because the term “principal business purpose” was undefined. Specifically, Adam and Eve alleged that the term lacked specificity since it did not declare how an entity’s “principal business purpose” was quantified: floor space, gross revenue, net revenue, or amount in inventory. However, the court found that because the Act permitted localities to address these concerns in their ordinances, this level of specificity was not required. It further noted that a plaintiff whose conduct “is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice.”

Lastly, the court held that Adam and Eve’s equal protection claim failed due to its failure to show that the Act treated it differently than similarly situated entities or lacked a rational basis. A stipulation that “Spencer’s sells less than 10 percent of items prohibited by the statute” was its only record evidence. The court found Spencer’s was not similarly situated because Adam and Eve did not open before 2007. Similarly, a stipulation that “other stores in the city of Jonesboro sell condoms, lubricants, and one brand of personal massager” was insufficient because Adam and Eve’s comparisons to Walgreen’s, Walmart, and CVS did not cite any facts showing that these entities were similarly situated. Moreover, the Act did not totally ban Adam and Eve from operating in Jonesboro. Accordingly, the court found no equal protection violation, and the judgment of the district court was affirmed.

Adam and Eve Jonesboro, LLC v. Perrin,2019 WL 3770210 (8th Cir CA 8/12/2019)

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