Apples & Oranges

A superb opinion from the Seventh Circuit Court of Appeals just came down. It begins, “Indianapolis revised its adult business ordinances in 2003. These amendments expanded the definition of ‘adult entertainment business’ to include any retail outlet that devotes 25% of more of its space or inventory to, or obtains at least 25% of its revenue from, adult books, magazines, films, and devices. (Adult ‘devices’ include vibrators, dildos, and body-piercing implements.) See Indianapolis Rev. Code §807-103. Until 2003 the trigger had been 50%.” Well, from there Chief Judge Easterbrook broke out his logic-hammer on the City’s ordinance:

More importantly, the studies to which the City points concern adult businesses that offer live sex shows, private viewing booths, or both. This circuit’s decisions likewise concern live entertainment. See, e.g., R.V.S., L.L.C. v. Rockford, 361 F.3d 402 (7th Cir. 2004) (exotic-dancing nightclubs); G.M. Enterprises, Inc. v. St. Joseph, 350 F.3d 631 (7th Cir. 2003) (nude dancing in bars). Three of the four plaintiffs in this suit, however, do not offer live entertainment or private viewing. They are simple book or video outlets, brought under the regulatory umbrella only because 25% or more of their sales come from sex-related materials. Until the 2003 amendments, these stores were treated the same as Barnes & Noble or Blockbuster Video. If they were associated with significant crime or disorderly conduct, it should be easy for Indianapolis to show it. But the City has not offered an iota of evidence to that effect.

Nailed. Take in the opinion.

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