The Tennessee Supreme Court is currently considering enjoining a law that gives more rights to adult cabarets than it does to adult bookstores, and Michigan-based First Amendment attorney Bradley Shafer is hopeful that the court will make the right decision.
At issue are two combined cases: Clinton Books and Fantasy Warehouse, Inc. v. City of Memphis, et al. Other defendants include the Memphis Police Department and the Attorney General of the State of Tennessee.
"This is about an hours-of-operation statute for adult bookstores that doesn't apply to strip clubs," explained Shafer, who argued the case on Nov. 15, "and it's not only hours of operation, but you can't be open on holidays, which would include religious holidays – Christmas, Good Friday, and Martin Luther King Day, because that's a state holiday in Tennessee."
Such a law would appear to violate several sections of the Tennessee Constitution. For example, Article I, Sec. 3 holds, in part, "no preference shall ever be given, by law, to any religious establishment or mode of worship," and if some adults' "mode of worship" on Christmas or Good Friday is to rent an adult movie, the state Constitution should allow them to do it.
Moreover, Sec. 19 of that same Article promises, "The free communication of thoughts and opinions, is one of the invaluable rights of man and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty." An hours-of-operation statute would appear to restrict that "free communication of thoughts and opinions" – even if, in this case, lustful ones.
As to the discriminatory aspect of the law, Shafer can look to Article XI, Sec. 8 of the Tennessee Constitution, which in part states, "The Legislature shall have no power to ... pass any law granting to any individual or individuals, rights, privileges, immunitie, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law."
Hence, if clubs can remain open when bookstores must by law be closed, that would appear to be a legal privilege extended to one business but not the other.
But before he could even argue the hours-of-operation discrimination, Shafer had to tackle a procedural problem with Tennessee law.
"There are basically two issues that the Tennessee Supreme Court took the case on," Shafer detailed. "One is, we tried to get an injunction against this statute. We filed a lawsuit in civil court against this criminal statute. If you violate the hours of operation provision, it's a misdemeanor, so it [the law] has a criminal sanction. Well, there's a 102-year-old doctrine in Tennessee that says that civil courts cannot enjoin the enforcement of a criminal statute, so that was a procedural burden that we had to get over, because the trial court just determined it didn't even matter what our arguments were; it couldn't give us an injunction."
The trial court's position, coupled with the doctrine that prevents civil courts from enjoining criminal statutes, would seem to preclude any pre-enforcement challenge to the discriminatory effects of the law, and that was the stance Shafer took in his argument. The state's assistant attorney general, however, didn't see it that way.
"The state's argument is, you can have your trial and you can get a declaratory judgment that it's unconstitutional at the end of the trial," Shafer recounted, "to which I said, 'But that doesn't stop our constitutional rights from being irreparably harmed,' which is a violation for even minimal periods of time. They're not saying you can't raise a facial challenge; you just can't get an injunction to prohibit the detriment while you're litigating the case."
"I think they [the Supreme Court justices] were pretty uniformly of the belief that they were going to have to change that doctrine that started in 1903," Shafer continued, "and then with regard to the state constitutional grounds, we were basically arguing that the Tennessee Constitution is broader than the federal Constitution, and because of a couple of cases that they had decided, the government could not rely on the supposed adverse secondary effects of adult businesses, and whether they reach that issue or send it back to the trial court for further consideration of that, I don't know."
Originally, the civil trial court had dismissed Shafer's discrimination claim, but the state Court of Appeals reversed the dismissal and ordered a trial on the merits.
"But I wanted the ability to get an injunction," Shafer explained, "so we took it up on what they call a discretionary writ to the Tennessee Supreme Court. They do not have to take that kind of appeal, but they did. Interestingly, there was a new justice who had just been appointed to the court, and this was like her second week on the bench, and she was actually the first one who started asking questions about the constitutional issue, so we were happy about that."
Shafer expects a decision from the state high court within two to three months.
