Adam and Eve Jonesboro, LLC v. Harold Perrin, 933 F.3d 951

Background

Arkansas enacted Act 387 (2007) regulating “adult bookstore or video store,” barring such businesses within 1,000 feet of schools, parks, churches, libraries, daycare, residences, trails, and playgrounds to curb alleged secondary effects (crime, drugs, prostitution, disease, sexual assault).
The statute applies when the sale or rental of covered sexual material or devices is “one (1) of its principal business purposes”; definition of “specific sexual activity” is statutory.
Adam and Eve sought to open a Jonesboro franchise selling lingerie, adult toys, novelties, massage oils, and lubricants; it received a business privilege license but could not obtain a certificate of occupancy due to zoning distance requirements.
In its §1983 suit Adam and Eve alleged First Amendment (content-based restraint), vagueness (undefined “principal business purpose”), and equal protection (selective enforcement) violations. It disavowed selling pornographic books, DVDs, viewing booths, or live entertainment.
The district court applied intermediate scrutiny under Renton/Alameda Books, upheld the Act as aimed at secondary effects, found “principal business purpose” intelligible (identified ~30% revenue in regulated items as sufficient), and rejected equal protection claims (grandfathering and incidental sales distinctions).
On appeal the Eighth Circuit affirmed: it held Adam and Eve did not engage in protected expressive conduct, so First Amendment claim failed; the term “principal business purpose” is not unconstitutionally vague; and equal protection was not violated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Adam and Eve’s retail sales are protected speech / whether the Act abridges First Amendment rights	Act restricts content of commerce (sales of sexual devices) and thus abridges speech	Adam and Eve’s proposed Jonesboro store disavows expressive elements (no pornographic books, DVDs, viewing booths, or live entertainment); no expressive conduct to protect	No protected expressive conduct; First Amendment claim fails (no need to apply Renton intermediate scrutiny)
Whether "principal business purpose" is unconstitutionally vague	Term is undefined; statute must quantify principal purpose (floor space, revenue percentage, inventory)	Ordinary meaning (chief/main) suffices; legislature need not specify exact metric; statute allows local refinement	Term is not vague; ordinary meaning provides fair notice; ~30% revenue can constitute a principal business purpose
Whether Act violates Equal Protection by treating similar sellers differently	Adam and Eve points to other local retailers selling regulated items (Walmart, Walgreens, Spencer’s) as similarly situated but treated favorably	Those retailers either were grandfathered (Spencer’s pre-2007) or sell regulated items only incidentally (not a principal purpose); classification rationally relates to government interest	No equal protection violation: Adam and Eve failed to show similarly situated comparators or invidious purpose; rational basis exists to address secondary effects
Whether district court’s standard-of-review error requires reversal	Plaintiff argues the court applied intermediate scrutiny improperly	Defendant argues plaintiff has no protected speech so review standard is irrelevant	Affirmed on alternative ground: absence of expressive conduct disposes First Amendment claim; no reversal needed

Key Cases Cited

City of Los Angeles v. Alameda Books, 535 U.S. 425 (Sup. Ct.) (recognizing regulation of adult businesses justified by secondary effects)
Erie v. PAP’s A.M., 529 U.S. 277 (Sup. Ct.) (upholding zoning to curb secondary effects of adult entertainment)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (Sup. Ct.) (intermediate scrutiny for time, place, manner regulations targeting secondary effects)
Young v. American Mini Theatres, 427 U.S. 50 (Sup. Ct.) (plurality upholding zoning restrictions on adult businesses)
Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (Sup. Ct.) (recognizing First Amendment protection for sales of video games)
Holder v. Humanitarian Law Project, 561 U.S. 1 (Sup. Ct.) (clarifying vagueness and need not achieve perfect clarity in regulations of expressive activity)
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (Sup. Ct.) (equal protection framework; rational basis review)
U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (Sup. Ct.) (classifications lacking rational basis invalid under Equal Protection)
BZAPS, Inc. v. City of Mankato, 268 F.3d 603 (8th Cir.) (prior treatment of what constitutes a principal use in adult-use zoning)
Holmberg v. City of Ramsey, 12 F.3d 140 (8th Cir.) (upholding zoning restrictions on adult businesses)
Planned Parenthood Minnesota v. Rounds, 686 F.3d 889 (8th Cir.) (standard of review for de novo constitutional challenges)