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Saturday, September 05, 2009

Ind. Decisions - "Federal court ruling would let city's adult shops run 24/7" [Updated]

That is the headline to Robert King's story today in the Indianapolis Star about the 7th Circuit's ruling Thursday in the case of Annex Books Inc, et al v. City of Indianapolis (see ILB 9/3/09 summary here). Quotes from today's story:

Adult businesses selling books, movies and sex paraphernalia in Indianapolis will be able to open on Sundays -- and 24 hours a day -- unless the city can prove there is some compelling reason why it is singling out that particular day and particular hours.

A federal appeals court ruling issued Thursday casts serious doubts on the future of key parts of a 2003 city ordinance that more strictly regulates "adult entertainment businesses" in Indianapolis.

Unless the city can prevail on appeal or in a new evidentiary hearing, adult businesses not only could operate anytime, they also could provide booths or stalls with doors, where patrons can privately view movies on the premises.

"It is a pretty significant defeat for the city," said Richard Kammen, an attorney representing the four adult businesses that sued the city.

The three-judge panel said the city needs evidence that the restrictions in the ordinance have public benefits "great enough to justify any curtailment of free speech."

The city contends that such businesses attract crime. But the best it could do was report that, in 2002, police made 41 arrests for public masturbation at Annex Books, an Eastside shop that is one of the businesses that filed suit.

The court said it wasn't clear, however, whether the arrests occurred on Sundays or after midnight or whether that number of arrests was considered a lot compared with arrests at bars and other establishments.

"There must be evidence," the court said in its written decision. "Lawyers' talk is insufficient."

The original ordinance was championed by then-Mayor Bart Peterson and approved by the City-County Council in 2003. It led to a court challenge from four businesses -- Annex Books, Keystone Video, Lafayette Video & News and New Flicks -- and to court arguments in 2005.

What happens next?
Jon Mayes, the chief litigation counsel for the city, said it has several options. It could appeal to the U.S. Supreme Court, ask a full panel of judges from the 7th U.S. Circuit Court of Appeals to hear the case or go back to the original court of Judge Sarah Evans Barker and try to produce the evidence the panel had sought.

Because the court case is four years old, Mayes said it could be that new data are readily available to support the city's position. Although the panel's ruling opens the possibility of Sunday operations for adult bookstores, Mayes said: "There's a lot of ways to fix this." "This fight is not over," he said.

Even if the ruling stands, neither side predicted a sudden and major proliferation of adult bookstores in Indianapolis.

Kammen, the attorney for the bookstores, said a tough economy is a natural barrier. But so is the Internet, which has made pornography more easily accessible to the public -- even without leaving one's home. * * *

The 2003 ordinance expanded the definition of "adult entertainment businesses" from those that get half of their revenue from adult books, magazines, films and devices to those who get as little as 25 percent of their revenue from such items. It required that the businesses be well-lit and sanitary and closed between midnight and 10 a.m. Monday through Saturday, and closed Sundays.

[Updated 9/6/09] Indianapolis attorney Bill Groth writes:
Thanks for the report about the long-delayed decision in the City of Indianapolis v. Annex Books case.

Judge Easterbrook writes, four years after the Court heard oral argument, that to justify its restrictions on adult book establishments Indianapolis must come forward with "evidence. Lawyers' talk does not suffice."

From my standpoint, nearly two years after the Supreme Court heard oral argument in the voter ID case, I only wish the Court had held the State of Indiana to the same quantum of proof to justify Indiana's photo ID requirements for voting and required it to prove rather than simply assuming the existence of imposter voting.

I've made this observation before, but Annex Books is yet another reminder that the federal constitution has now been construed by the Roberts Court in a manner that offers greater protection from governmental restrictions for adult entertainment activities than it does for voting. I have to believe those who drafted the Bill of Rights and the post-Civil War amendments could not have intended this result.

Posted by Marcia Oddi on September 5, 2009 09:09 AM
Posted to Ind. (7th Cir.) Decisions