10th Circuit Ruling Paves Way for Potential Supreme Court Review in Sexually Oriented Business Challenge
Thu, 25 Oct 2007
The 10th Circuit Court of Appeals has denied en banc review of its earlier panel ruling in Abilene Retail #30, Inc. v. Bd. of Commissioners of Dickinson Co., No. 05-3473 (10th Cir. 2007), but not without a sharp dissent by Judges Gorsuch joined by Judge Kelly and a response by Judge Lucero. A link and summary of the earlier panel opinion is here.
A government ordinance regulating sexually oriented businesses (SOBs) typically survives First Amendment challenge if it is content-neutral and designed to counter adverse secondary effects from SOBs. If an ordinance is aimed at the content of the speech or expression in question then it is considered under a strict scrutiny standard of review and likely deemed unconstitutional. To determine whether an enactment is content-neutral, courts inquire whether the ordinance furthers a “substantial governmental interest and leaves open reasonable alternative avenues of communication.” See, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
Limiting adverse effects from SOBs, such as crime and depreciated property values, is a substantial governmental interest, but the government must show that it relied on evidence “reasonably believed to be relevant” in furthering its interest. An SOB may then rebut that evidence by demonstrating that it is erroneous or does not support the government’s rationale. If an SOB succeeds in rebuttal, the burden shifts back to the government to supplement the record with evidence renewing support for a theory that justifies its ordinance. Courts typically provide great deference to governmental entities when weighing the evidence. This three part burden shifting standard of review was enunciated by the U.S. Supreme Court in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) and it provides context for the concerns set forth by Judge Gorsuch in today’s dissent from en banc review:
Legally, the significance of this case is illustrated by the fact that it opens not one, but two, splits with our sister circuits on important questions of law concerning the amount of judicial deference due legislative judgments. First, the panel opinion sets a new and much higher burden for municipalities under Alameda Books Step 1 than has any other circuit court, and in the process creates a circuit split with the Fifth Circuit . . . Second, unlike our sister circuits which afford substantially more judicial deference to legislative judgments, the concurrence’s treatment of Alameda Books Steps 2 and 3 effectively allows a jury to “veto” legislation whenever it concludes, by a preponderance of the evidence . . . that the legislature’s chosen path is erroneous . . . . Such a holding also arguably renders Alameda Books Step 1 superfluous (why bother asking if the legislature’s evidence was merely rationally related to its enactment when a jury can reject that enactment with a finding that a preponderance of the evidence does not support it?) Factually, this case is of great practical importance to the large numbers of rural counties and municipalities within our reach. Rural jurisdictions within the Tenth Circuit will be unable to rely on existing empirical “urban” studies to regulate the secondary effects of adult businesses and will be forced to meet new, unique, and significantly higher legal burdens not imposed on their counterparts in other areas of the country.
In reply, Judge Lucero argued that there is no circuit split and rural jurisdictions would still be at liberty to rely on urban studies and other traditional forms of evidence. Judge Lucero also argued that this case is distinguishable from other cases, because the government presented less evidence in supports of its ordinance than similar cases, thereby triggering additional review.