Supreme Court Rejects New Albany DVD Case

WASHINGTON, D.C.—Thanks to an excellent analysis by Seventh Circuit Chief Judge Frank H. Easterbrook, the U.S. Supreme Court has denied the petition for certiorari filed by the City of New Albany, Indiana, which sought to overturn a Seventh Circuit panel ruling that the New Albany DVD adult store could continue to operate in the city.

As detailed in our previous story, New Albany DVD—now renamed Cleopatra's—has been winning court decisions ever since the city began litigating its licensing issue, with the trial court judge ruling that under Indiana law, the store, which was lacking only a certificate of occupancy, was entitled to remain open for two years even absent the certificate, since its renovations had been completed before a new city ordinance was passed zoning the store out of its current location.

However, Judge Easterbrook, writing for a unanimous panel, rejected the trial court's interpretation of Indiana law but nonetheless found for the store on a different basis.

"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," Judge Easterbrook wrote. "The Supreme Court in [City of Los Angeles v.] Alameda Books and [City of Renton v.] 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."

As the basis for its new ordinance, the city had relied on the usual "secondary effects" studies, the vast majority of which were conducted more than 20 years ago, but as Judge Easterbrook pointed out, those studies dealt primarily with adult venues offering live entertainment or peep shows, and did not apply to venues offering adult DVDs for off-premises viewing. Moreover, the studies did not deal with the incidence of "morals offenses" like prostitution or lewd exhibition at such take-home venues.

Trouble was, the city had no studies of its own establishing that crime was more prevalent around the adult store than it was around any other venue in the city.

"I've run the crime statistics for the last five years, and [New Albany] DVD has caused zero crime," said Steve Mason, the store's attorney.

"Recognizing that prior studies had lumped bookstores, peep shows, and exotic dancing establishments together, New Albany offered some anecdotal justifications in the district court," Judge Easterbrook reported. "It cited testimony in some earlier cases by people complaining about pornographic litter near adult bookstores, and it suggested that these stores may expose their customers to thefts. The former line of argument rests on the fact that some customers are bound to throw away wrappers, which may have images inappropriate for children. The 'theft' line of argument starts with the premise that many customers of adult establishments pay in cash, which makes them a target for thieves."

However, the panel dismissed such allegations as "paternalistic," and noted that they didn't come close to creating enough of a problem to tip the balancing test announced by Justice Anthony Kennedy in his Alameda Books decision, since virtually no crimes could be traced to the store's existence.

"In Renton, the Court determined that while the material inside adult bookstores and movie theaters is speech, the consequent sordidness outside is not," Justice Kennedy wrote. "The challenge is to correct the latter while leaving the former, as far as possible, untouched. If a city can decrease the crime and blight associated with certain speech by the traditional exercise of its zoning power, and at the same time leave the quantity and accessibility of the speech substantially undiminished, there is no First Amendment objection. ... On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself."

So far, the city is on the hook for over $300,000 in legal fees to New Albany DVD from its attempts to close down the store, and would incur thousands in additional (taxpayer) expenses if it chooses to try to pursue the case further, but City Attorney Shane Gibson will reportedly "consult with a Tennessee attorney who has represented the city [likely Scott Bergthold of the Community Defense Counsel] before deciding what to recommend" to the city council.

Judge Easterbrook's opinion in the New Albany DVD case can be found here.