INDIANAPOLIS, Ind.—It may have nothing to do with the fact that ultra-conservative former radio DJ/ U.S. Rep. Mike Pence is currently the governor of the state, nor the fact that a majority of Indianans voted for him, but the City of Indianapolis just doesn't seem to have learned anything about the First Amendment from its pattern of defeats in the Seventh Circuit Court of Appeals—the latest being Annex Books v. City of Indianapolis, argued earlier this month.
In a sense, the decision, which was issued on Friday, is a sequel to Annex Books' earlier victory in the Seventh Circuit regarding a local ordinance's attempt to close all adult bookstores, whether or not they have viewing booths on the premises, between the hours of midnight and 10 a.m., and all day Sundays. That case, heard in 2009 by the same panel of appeals judges—Frank H. Easterbrook, Joel Flaum and Ilana Rovner—resulted in the court ordering an evidentiary hearing regarding the city's rationale for closing the stores during those hours. That hearing was conducted by U.S. District Judge Sarah Evans Baker—who once again upheld the ordinance despite what the appeals court termed "weak" evidence.
The city's entire argument centered around the alleged secondary effects caused by adult stores, which included the single claim that with the ordinance in place, "there were fewer armed robberies at or near adult bookstores."
"That the City’s regulation takes the form of closure is the nub of the problem," wrote Judge Easterbrook for the entire panel. "Justice Kennedy, whose vote was essential to the disposition of Alameda Books, remarked that 'a city may not regulate the secondary effects of speech by suppressing the speech itself.' Yet that’s what Indianapolis has done. The benefits come from closure: shuttered shops can’t be robbed at gunpoint, and they lack customers who could be mugged. If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether."
"I have to say, it's a wonderful result, a great First Amendment victory and a very, very important case, because it puts logic into the equation when evaluating the so-called secondary effects of adult businesses, and examines it with that degree of care that the First Amendment would otherwise and should require," Annex Books' attorney J. Michael Murray told AVN. "It agrees with our argument that any benefits from closing these stores are miniscule, not statistically significant and only to be expect because if you close a business down, it is difficult for there to be a robbery of people inside the business, which is in a sense a tautology. And yet here, the evidence was clear that the so-called reduction in that type of crime was so miniscule as to be nonexistent and far outweighed by the enormity of the loss of constitutionally-protected speech.
"The other thing that's interesting is that when you look at total crime within 500 feet of the store, the evidence demonstrated that in fact, during the closing hours for some three and a half years after the ordinance was enforced, crime actually went up by closing the stores, and when they were open, total crime was less," he added. "And of course, our expert gave the opinion that one reason for that is because an open establishment is a guardian in the neighborhood, and when you close it, it actually tends to increase crime in the vicinity of the store. And we had other evidence from police officers that we put on, on cross-examination, who acknowledged that these stores were not in any way, shape or form a source of prostitution or drunk-and-disorderly or any other vice-type crimes at all."
One thing that is particularly interesting about the decision is Judge Easterbrook's comparison between the ordinance closing the bookstores on Sundays and a scenario where a city ordinance prohibited newspaper owners from publishing a Sunday edition.
"To test the proposition that delay in obtaining reading matter does not cause loss, we put a hypothetical at oral argument," Judge Easterbrook recounted. "Suppose Indianapolis were to prohibit the distribution of newspapers on Sundays. (Just newspapers: our hypothetical law differs from a general Sunday‑closing statute ...) Closure could achieve multiple benefits, including a reduction in the number of traffic accidents (newspapers generate lots of traffic because trucks deliver newsprint to plants and printed papers throughout the region; home delivery carriers may drive their own cars); a reduction in robberies of paper deliverers, who may be on the street when few others are awake to protect them; and a reduction in the newspaper’s carbon footprint and other pollutants. All the news (and ads) now in the Sunday paper could appear in Monday’s paper, so readers would retain access, and anyone who wants up-to‑the‑minute news could get it on the Internet while avoiding accidents, robberies, and pollution. The lawyer representing Indianapolis was shocked at the idea, however; he proclaimed that the City could not do such a thing consistent with the First Amendment."
But then the judge got down to the nitty-gritty: The city's real reason for the ordinance.
"What is the difference between preventing a newspaper from selling paper copies on Sunday (or before 10 a.m.) and preventing an adult bookstore from selling paper copies on Sunday (or before 10)?" the panel asked. "Not secondary effects: the harms to third parties caused by a newspaper likely exceed those caused by an adult bookstore. The difference lies in the content of the reading material. Indianapolis likes G‑rated newspapers but not sexually oriented books, magazines, and movies. Yet neither [City of Los Angeles v.] Alameda Books nor [Renton v.] Playtime Theatres permits units of government to stop the distribution of books because their content is objectionable, unless the material is obscene."
The appeals court's conclusion? Strike down the forced-closing ordinance.
"I think that the Sunday newspaper question was a perfectly apt analogy and it demonstrates the problem with the so-called secondary effects doctrine as it is applied to adult businesses because why are they being singled out?" Murray commented. "And as Judge Easterbrook pointed out in his opinion, if you apply that same analogy to newspapers and required them not to publish on Sunday on the theory that they could put everything in the Monday edition, the City of Indianapolis' response was that that would be shocking and clearly unconstitutional. And yet, from an analytical standpoint, that's what was happening when the City of Indianapolis imposed this hours of operation ordinance just against adult stores."
The Seventh Circuit Court of Appeals panel's decision can be found here.