Agenda - Planning Commission - 05/05/1998

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Page 2 April 10, 1998 Z.B. First Amendment--Adult bookstore challenges state law regulating adult businesses Richland Bookrnart Inc. d/b/a/Town and Country v. Nichols, 6th U.S. Circuit Court of Appeals, No. 96-6472 (1998) The 6th U.S. Circuit Court of Appeals has jurisdiction over Kentucky, Michi- gan, Ohio, and Tennessee. The Tennessee Legislature passed the Tennessee Adult-Oriented Estab- lishment Act, which limited the hours and days during which adult entertain- ment establishments could be open and banned booths in which patrons watched sexually explicit videos or entertainment. The statute's preamble discussed the need to outlaw closed video booths because patrons often used them to stimulate themselves sexually, creating a public health problem. It also listed detrimental health, safety, and welfare prob- lems ("secondary effects") caused by shops selling graphic sexual material, citing studies done by other jurisdictions. The secondary effects included increased crime, reduced property values, and the spread of sexually transmit- ted and Communicable diseases. The statute defined adult-oriented establishment as "any commercial es- tablishment.., or portion thereoF' that sold as its "predominant stock or trade... sexually oriented material." It defined "sexually oriented material" as any pub- lication that depicted "sexual activity ... or which exhibits uncovered human genitals ... in a lewd or lascivious manner." The statute prohibited adult busi- nesses from opening before 8:00 a.m. or after midnight Monday through Satur- day and from opening at all on Sundays or state-recognized holidays. A first offense was punishable by a $500 fine. Further violations meant fines up to $2,500 and/or imprisonment for up to 11 months and 29 days. The statute exempted live stage shows, adult cabarets, and dinner theatres. Richland Bookmart Inc., an adult bookstore that sold sexually explicit books, magazines, and videos in Knox County, sued the county's district attorney general. It sought a court order prohibiting the district attorney from enforcing the statute and asked the court to declare the statute unconstitutional. The bookstore claimed the law violated its First Amendment rights through the closing-hours requirement and its equal protection rights by exempting certain other establishments that sold or traded in adult-oriented goods. According to the bookstore, the statute was a content-based regulation and therefore invalid. It also claimed the statute was unconstitutionally vague. The district attorney general argued the statute was content-neutral and the closing requirements were proper "time, place and manner" regulations. The court issued an order prohibiting the statute's enforcement, finding that the hours restrictions violated the First Amendment. The court found the statute was overly vague and exceeded what was necessary to further the state's legitimate interest in regulating the secondary effects described in the statute. The court said the statute's vagueness might have a "chilling effect"