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Blog: Troubling decision on adult businesses
First Amendment Watch

By David L. Hudson Jr.
First Amendment scholar

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A recent decision by the 11th U.S. Circuit Court of Appeals has taken the secondary-effects doctrine affecting adult businesses to a new low. As a result, adult clubs in Fulton County, Ga., cannot mix alcohol and nude dancing.

The Feb. 16 decision in Flanigan’s Enterprises of Georgia v. Fulton County ignored relevant, local evidence in favor of less relevant, outdated evidence from elsewhere.

Several studies of the Atlanta area in the late 1990s showed that adult businesses did not cause the harmful secondary effects many associate with adult businesses — increased crime and decreased property values. A police study and a Fulton County study both showed no evidence of harmful secondary effects. The businesses had less crime than 24-7 convenience stores and many other businesses. Furthermore, studies showed that the businesses actually raised nearby property values. These findings prompted an 11th Circuit panel involving the same parties to strike down Fulton County adult-business legislation in 2001.

But local officials followed the old saying, “if at first you don’t succeed, try, try again” — and hope for different judges. They commissioned another study from the Fulton County Police Department, which again showed no increase in police calls. Then they commissioned yet another study, which was noteworthy for citing outdated studies from across the country.

This report — titled “Fulton County Adult Entertainment Businesses” — cited 28 studies from Texas, Virginia, Washington and Minnesota. It noted that only 13 of these studies found evidence of harmful secondary effects. Yet it used them to justify a new law, which passed the same year as the original adverse 11th Circuit ruling. What about the other 15 studies? Even worse, many of those studies were old. One from Phoenix was from 1979; another from Adams County, Colo., was from 1988.

The secondary-effects doctrine has always troubled First Amendment advocates because it lowers the level of judicial scrutiny for laws that appear to discriminate against speech on the basis of content — in this context, erotic expression. Traditionally, a law that appears to discriminate on a content basis would be subject to the strictest form of judicial review to determine whether it was justified. But when adult entertainment is involved, government regulators are allowed to claim secondary effects and legislation is reviewed under a more lenient standard. Laws limiting the location and operating hours of adult businesses, and imposing buffer zones between patrons and performers, are grounded on the secondary-effects doctrine. Such laws single out adult businesses. Adult entertainment is an easy target and a politically unpopular pariah.

The Supreme Court has said that government must show some evidence of secondary effects before passing such laws. It has allowed jurisdictions to rely on studies from other jurisdictions. But the high court has never said to ignore relevant local evidence in favor of outdated, less-reliable evidence. In fairness, Fulton County regulators did cite local anecdotal evidence from a police chief and a juvenile court judge.

Some may question how a ruling like the 11th Circuit's damages the First Amendment. First, it allows suppression of free expression by consenting adults. Second, the secondary-effects doctrine has been used far outside the realm of adult businesses to limit political signs in historical districts, dress codes in public schools and advertising by billboard companies. It also has lowered the level of evidence required by the government to justify restrictions on many types of speech, including attorney advertising.

If there are more decisions like the one recently issued by the 11th Circuit, there will be another harmful, primary effect — damage to the First Amendment.

Comment? E-mail me


11th Circuit: Ga. county can ban alcohol in strip clubs

Unanimous three-judge panel says Fulton County showed ample proof of negative secondary effects of alcohol and live nude dancing in the community. 02.18.10

Secondary effects and the 3 acts of David Souter

By David L. Hudson Jr. Justice first helped expand use of doctrine to adult-business zoning cases, then reconsidered and changed his position. 06.25.09

First Amendment Watch blog

Adult entertainment overview

Secondary-effects doctrine

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