740 F.3d 1136
7th Cir.2014Background
- Indianapolis limits adult bookstores with closing hours midnight to 10 a.m. daily and bans Sunday activity; other retailers are not restricted.
- Lower courts previously found the closure justified by reduced armed robberies but found evidence weak or not properly controlled.
- The district court ruled for the City, citing a reduction in robberies as justification.
- The Seventh Circuit discussed that Alameda Books and Playtime Theatres allow regulation of secondary effects but not suppression of speech.
- The court compared closure to suppressing speech and found the form (closure) problematic for First Amendment reasons.
- The judgment reversed the district court and remanded to enjoin enforcement of the closure ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a city regulate secondary effects by closing stores? | Indianapolis relies on closure to reduce harms. | Closure achieves benefits with minimal speech loss. | No, closure cannot be used to regulate secondary effects |
| Does closure amount to suppression of speech rather than regulation of conduct? | Closure serves public safety and reduces crime. | Closure is a legitimate regulatory tool for secondary effects. | Yes, it suppresses speech and is improper |
| Are Alameda Books/Playtime Theatres-style theories applicable to closure? | Those cases permit regulation without restricting speech itself. | They support measures targeting secondary effects of adult businesses. | Not when it results in closing bookstores and suppressing content |
| Is there a First Amendment constitutional basis to uphold the closure ordinance? | Content-directed restrictions must be narrowly tailored; closure is overbroad. | Closure reduces harms while preserving some speech opportunities. | Not upheld; injunction warranted |
Key Cases Cited
- Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (secondary effects doctrine; cannot suppress speech to reduce harms)
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (time/place/manner regulation for secondary effects)
- Illinois One News, Inc. v. Marshall, 477 F.3d 461 (7th Cir. 2007) (related First Amendment considerations)
- New Albany DVD, LLC v. New Albany, 581 F.3d 556 (7th Cir. 2009) (adults may decide reading risks; city cannot close bookstores)
- United States v. Stevens, 559 U.S. 460 (2010) (crush videos cannot be suppressed; speech protection)
- American Booksellers Ass'n, Inc. v. Hudnut, 475 U.S. 1001 (1985) (non-obscene, sexually explicit material cannot be suppressed)
- Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (fear-based restriction not justified for speech restriction)