A Tenth Circuit Court of Appeals panel has delivered a mixed ruling in a case between Doctor John’s — an adult novelty chain — and the town of Roy in Utah.
Doctor John’s owner, John Haltom, challenged a Utah city adult business ordinance on a range of constitutional grounds, including arguments that the secondary effects rationale used by the city was based on adult businesses that had on-site entertainment, such as video booths, and such business are not comparable because his store in Roy is of a different type, catering substantially to women customers and involving only off-site products to be used at home.
The Desert News reported that Haltom also challenged the law as unconstitutionally vague and claimed it gave the city “unbridled discretion” over who must obtain a Sexually Oriented Business license.
The story went on to say that Haltom also claimed that a provision denying a license (for a period of 5 years for a felony conviction or 2 years for a misdemeanor) to persons convicted of certain sexually-related crimes operates as a prior restraint on those individuals’ exercise of their First Amendment rights.
In 2001, when Dr. John’s applied for and received a general business license to operate a store in Roy City, Haltom had recently been convicted by a jury of selling harmful material to a minor. It has been speculated that that conviction could have jeopardized his license under the terms of the new ordinance.
The District Court in Utah rejected all of Haltom’s constitutional arguments, including the prior restraint arguments on the license denial provisions, and the Appeals Court agreed on every main point.
However the Appeals panel noted that Dr. John’s had pointed to an article criticizing the methodology used in the most frequently cited secondary effects studies. The panel was uncertain whether the District Court had considered the article and remanded the case so that it could do so.
Portions of this courtesy of the Free Speech X-Press, the weekly newsletter of the Free Speech Coalition. More info at www.freespeechcoalition.com.
