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Thursday, September 10, 2009
Ind. Decisions - First, Annex Books, now New Albany DVDThis Sept. 3rd ILB entry was headed "7th Circuit issues long-awaited decision in Annex Books," and began:
This ILB entry from August 24th was headed "Annex Books and New Albany DVD still awaiting decisions; September will mark the 4th anniversaries of their oral arguments before the 7th Circuit."In today's 9-page opinion, New Albany DVD, LLC v. City of New Albany (SD Ind., Judge Barker), CJ Easterbrook writes:
No appellate court has required a city to adopt a rule of the kind that the district court thought necessary. “Narrow tailoring” does not mean that the ordinance must be the least restrictive possible regulation. See Ward v. Rock Against Racism, 491 U.S. 781 (1989). When some regulation is justified, a city has considerable discretion on matters of detail. The sort of zoning rule that New Albany enacted has been too widely used, and too often sustained, to be upset as “not narrowly tailored.”
This does not mean, however, that the injunction must be reversed, for a prevailing litigant is entitled to defend its judgment on any ground preserved in the district court, even if the district judge rejected that argument. Plaintiff defends its judgment with the argument that New Albany has not established that book and video stores offering only take-home items cause any untoward secondary effects. The Supreme Court in Alameda Books and Playtime Theatres held that proof of such effects is essential if municipalities regulate adult establishments differently from the way they regulate other similar businesses—for the sellers of books and movies enjoy constitutional protections that sellers of snow shovels, shoes, and parakeets do not. * * *
The district court needs to take evidence and apply intermediate scrutiny to New Albany’s ordinance. The case is remanded for proceedings consistent with this opinion and Annex Books. The injunction should remain in place pending the outcome of this hearing.