If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.— William J. Brennan, Jr.
Associate Justice, U.S. Supreme Court, 1956-1990
Texas v. Johnson, 491 U.S. 397, 414 (1989)
Dance as a means to express an erotic message has existed for centuries. In Biblical times, Salome, daughter of Herodias, danced for King Herod in a manner provocative enough to persuade Herod to offer her half of his kingdom. In other ancient societies, dance was used as a method of encouraging marriage and procreation. Nude or erotic dancing at strip clubs (or adult entertainment establishments) has also existed for ages.
Sometimes adult entertainment establishments exist in moral disfavor within their communities. This leads to drafting of restrictive ordinances to save the community from whatever harms adult entertainment might cause. Originally, the restrictions were simple and limited to bans on nudity and or bans on the sale of alcoholic beverages at establishments that exhibited nude dancers. Over time, however, these restrictions have been expanded to include restricting hours of operation, requiring a minimum distance between patrons and dancers, and even eliminating contact between patrons and dancers.
State and local governments regulate adult entertainment businesses mainly through a combination of three devices: zoning, licensing and nuisance control. The type of restriction that a government imposes on a sexually oriented business will frequently determine how a court analyzes the validity of that restriction.
- Zoning. One way that governments restrict adult entertainment is through land-use regulations. Zoning laws that target adult entertainment at times violate the First Amendment. Most adult operators are familiar with City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and its long-standing rule that zoning laws aimed at controlling the “secondary effects” of adult businesses are treated as though they are content neutral. Laws which are content-neutral — as opposed to content-based — are, in theory, easier to adopt and defend. For this reason, municipalities and counties, when adopting adult entertainment ordinances, routinely cite the secondary effects of increased crime, depreciated property values and blight. The idea is that, by citing “secondary effects,” the government’s law will be subject to less scrutiny if challenged in court.
- Licensing. Another way that governments address adult entertainment businesses is by imposing special licensing requirements on them. Licensing laws raise a number of issues under the First Amendment, such as compliance with the prior restraint doctrine. A prior restraint is presumptively unconstitutional. Org. for Better Austin v. Keefe, 402 U.S. 415 (1971). To overcome the presumption of invalidity, a prior restraint must satisfy stringent substantive and procedural requirements. Substantively, the restraint must establish clear standards to guide the discretion of the official who must approve the license. City of Lakewood v. Plain Dealer Publ’g, 486 U.S. 750, 757 (1989) (Brennan, J.). Procedurally, (1) the licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained, and (2) there must be the possibility of prompt judicial review in the event the license is erroneously denied. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228 (1990).
- Nuisance. Yet another way that governments control adult entertainment is by suing the adult business. In Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986), the U.S. Supreme Court held that the First Amendment does not preclude the closing of an adult bookstore under generally-applicable anti-prostitution laws. However, concurring in the judgment, Justice O’Connor warned of the need for judicial scrutiny to ensure that the targets of nuisance abatement actions were not singled out because of the nature of the books they sold “or because of the perceived secondary effects of having a purveyor of such books in the neighborhood.” Id. at 708. Justice O’Connor stated that if a city were to use a nuisance statute as a “pretext” for achieving such alternative purposes, “the case would clearly implicate First Amendment concerns and require First Amendment analysis.” Id.
We have a track record of success with all these issues. If you have questions about operating an adult entertainment business, please call us at 404-659-2880 or contact us online to schedule a consultation.
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