Adult Business Regulation

The Taboo adult novelty store in Columbia, South Carolina. Source: thestate.com.

In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine.  That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.

In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store.  That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses.  The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down.  Taboo was located in one of the restricted areas, and continued to operate for the amortization period.  At the end of the amortization period, Taboo sued the city under the First Amendment.
Continue Reading

Earlier this month, the 11th Circuit considered the constitutionality of an ordinance enacted in Sandy Springs, Georgia, which criminalizes the distribution of sexual devices.  Although not a First Amendment case, we’re including a post on the case because the decision relates to a First Amendment-protected land use—adult businesses—and introduces an alternative constitutional theory for

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Two weeks ago, a federal court in California dismissed a plaintiff’s claim that casino gaming was a First Amendment-protected activity.

Wared Alfarah, the plaintiff in this case, ran a retail business selling e-cigarette products.  To encourage customers to linger around his store, Mr. Alfarah offered pay-to-play games where the player tried to stop a computer cursor on a specific bar in a series of rotating bars.  If done correctly, the player won a random amount of prize money.  Although the location of the bars was randomized, the player’s “skill” allegedly determined his success.
Continue Reading

Pictured above is Silk, a club owned by one of the plaintiffs in the case. Source: onmilwaukee.com

Before 2012, the City of Milwaukee, Wisconsin required strip clubs to obtain one of three business licenses: if the club included both alcohol and nudity, the club would require both a liquor license and a “tavern-amusement license”; a dry strip club required either a “theater license” or a “public-entertainment club license.”
Continue Reading