A 1977 Indiana statute which makes it a crime for anyone to sell or display for sale sexually explicit materials within 500 feet of a church or school has been barred from being enforced against Video-Home-One, Inc., an Indianapolis video store doing business as V-H-One, whose stock of adult titles comprised less than 10 percent of its floor space.
"This is not an ordinance; it's a criminal statute," noted attorney J. Michael Murray, whose partner Steven Shafron successfully argued the motion for temporary restraining order before U.S. District Court judge David F. Hamilton. "What was at stake here was a felony offense. This poor entrepreneur had been in business for 15 years, and there happens to be a church nearby, and one day, he got a letter from the county prosecutor's office telling him that if he doesn't remove all of his adult merchandise, he will be criminally prosecuted and charged with a felony carrying a potential prison term, and so he was given 30 days within which to either comply with the prosecutor's demand or face criminal prosecution."
"We got into the case, unfortunately, too late to get him a restraining order before the 30 days were up," Murray added, "so he removed the materials, but fortunately we were able to get him a restraining order within days of that."
Indiana Code Sec. 35-49-3-3(a) provides, in pertinent part, that, "Except as provided in subsection (b), a person who knowingly or intentionally... (3) sells or displays for sale to any person matter that is harmful to minors within five hundred (500) feet of the nearest propertyline of a school or church ... commits a Class D felony."
"I've never seen a statute like this before," Murray said. "I don't know whether any other state has this kind of a criminal statute, but I haven't seen it. And to my knowledge, our client is the first one ever to have been prosecuted under it. We weren't able to find any history of any prior prosecutions."
Although Indianapolis does have an adult zoning ordinance, V-H-One, with its small adult selection, was not in violation of it. The use of the state statute was apparently an attempt to maneuver around the local zoning authority, whose code does not define V-H-One as an adult business.
"The statutory restriction on the location of sales of sexually explicit materials could survive First Amendment scrutiny only on the theory that the restriction is likely to reduce the so-called secondary effects of legal sexually-oriented businesses," wrote Judge Hamilton in his opinion. "The court has before it no evidence that a business like plaintiff's generates the types of secondary effects that can justify location restrictions as in the Alameda Books line of cases. The court therefore found that plaintiff is likely to succeed on the merits of its challenge to the statute and was otherwise entitled to a temporary restraining order."
The court went into a fair amount of detail as to how it came to its conclusion, which relied heavily on the U.S. Supreme Court's 2002 decision in City of Los Angeles v. Alameda Books.
"There is no evidence that plaintiff sells or rents these sexually explicit materials to minors or even that minors can see its displays of these materials, which are kept in a separate section of the store accessible only to adults," the court noted. "Also, it appears that all of the sexually explicit materials available to adults are not obscene and thus are constitutionally protected for adults to buy, sell, and view in the privacy of their homes."
V-H-One also does not have any arcade booths, so no sexually explicit materials can be viewed on the premises.
Nicholas Anthony Miller, of the State Attorney General's office, had argued that the restriction on selling or displaying adult videos within 500 feet of a school or church was part of a general plan to prevent minors from being exposed to sexually explicit materials.
But, the court observed, "The 500-foot restriction was not accompanied by legislative findings or legislative history that would help the court discern its purpose. The court must therefore use other information to evaluate the purpose of the statute, including the circumstances of its enactment and, most important, the probable effects of the statute." [Citations omitted here and below]
"Plaintiff has correctly pointed out that the 500-foot restriction will do little or nothing to protect children from direct contact with such materials," the court continued. "That fact suggests, however, not that the restriction was an absurdly ineffective and overly broad measure to accomplish that purpose, but that its purpose was closer to its likely effects: placing restrictions on adult businesses to protect nearby neighborhoods, schools, and churches from the secondary effects of those businesses. Accordingly, plaintiff's challenge to the 500-foot restriction is governed by the line of cases following American Mini Theaters and not by the cases addressing content-based restrictions on speech, such as Playboy Entertainment and Reno v. ACLU."
The court's statement was based in part on the fact that Indiana's 500-foot rule was adopted just months after the U.S. Supreme Court upheld the Detroit zoning ordinance at issue in Young v. American Mini Theaters, whose stated intent was to control the secondary effects of adult businesses on the community.
"Time, place, and manner restrictions designed to combat the secondary effects of businesses dealing in adult entertainment survive First Amendment scrutiny where they serve a substantial government interest and are narrowly tailored to allow reasonable alternative channels for such communication," Judge Hamilton stated, combining the rulings in City of Renton v. Playtime Theatres with the limitations placed on that decision by the Alameda Books case.
"[S]imply stating that an ordinance is designed to combat secondary effects is insufficient to survive intermediate scrutiny. The governmental interest of regulating secondary effects may only be upheld as substantial if a connection can be made between the negative effects and the regulated speech. In evaluating the sufficiency of this connection, courts must 'examine evidence concerning regulated speech and secondary effects'," the court said, quoting the Seventh Circuit's decision in R.V.S., L.L.C. v. City of Rockford, a case involving the location of an exotic dance club.
In this case, Judge Hamilton found, the state had made no such examination before amending its statute, and while he admitted that the situation would be different if the state were attempting to enforce the statute against a "more typical adult entertainment provider, particularly one with on-site viewing facilities," the fact that V-H-One was not considered to be an "adult store" made the state's burden significantly greater.
"In this case, however, the state has threatened to apply the statute to a store that has only a small fraction of its business in sexually explicit materials and which has no on-site viewing facilities," the court distinguished. "The defense has not cited and the court has not found any comparable body of law or evidence finding that such general-audience video stores have significant secondary effects on their neighborhoods if a small portion of their business includes the sale or rental of sexually explicit materials for off-site viewing by adults."
"Based on the limited information presented at this early stage of the litigation, the court has found that the plaintiff is reasonably likely to succeed on the merits of its claim that Indiana Code ß 35-49-3-3(a)(3) may not be constitutionally applied to plaintiff's business," the court concluded.
"The court accepted our argument that even if you could attempt to call this a Renton type ordinance or statute – and we don't think it is; we think it's a content-based statute – but even if it were to be regarded as a Renton type statute, it's clearly unconstitutional because it would prohibit, on criminal penalties, the sale of a single adult item," Murray summarized, "and so clearly it's overbroad, it's unconstitutional on its face and as applied. The court understood that."
The case is Video-Home-One, Inc. v. Brizzi, in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, No. 105CV1712DFHVSS.
