May a city require adult bookstores but not other establishments to close between midnight and 10am every night and all day Sunday?
In Annex Books v. City of Indianapolis, No. 13-1500 (Jan. 24, 2014), the Seventh Circuit said no. It struck down the City of Indianapolis’s requirement, which a district court had previously upheld. Although the City claimed that the restriction would lead to fewer armed robberies at or near the bookstores, the court held that “cities must protect readers from robbers rather than reduce risks by closing bookstores.” In the court’s view, “[t]hat the City’s regulation takes the form of closure is the nub of the problem.”
First, the court found that the evidence supporting the City’s justification is “weak as a statistical matter”: the data “do not show that robberies are more likely at adult bookstores than at other late-night retail outlets.”
Second, the court noted that although local governments may regulate the “secondary effects” of adult businesses under City of Los Angeles v. Alameda Books, Inc., 525 U.S. 425 (2002) and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), this concerns protecting “persons who want nothing to do with dirty books from harms” not protecting “businesses that knowingly accept the risk of being robbed, or persons who voluntarily frequent their premises.” (See this blog’s coverage of a Sixth Circuit “secondary effects” decision last year.)
Third, the court rejected the City’s argument that there is no loss to speech (and some gain in safety) because customers can patronize the stores during the open hours. The court countered with a hypothetical: could the City prohibit the distribution of newspapers on Sundays, to reduce traffic accidents, minimize paper-delivery robberies, and reduce the newspaper’s carbon footprint?:
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)? 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 Alameda Books not Playtime Theatres permits units of government to stop the distribution of books because their content is objectionable, unless the material in obscene.
Image coutesy of Flickr by Ken Hawkins (creative commons licenses, no changes made).