889 F.3d 432
7th Cir.2018Background
- HH-Indianapolis LLC (Hustler Hollywood) leased a property in a C-3 neighborhood commercial district in Indianapolis to open a retail store selling erotica, sexual devices, and related merchandise.
- Indianapolis zoning Ordinance (effective Apr. 1, 2016) prohibits "adult entertainment businesses" from operating as a right in C-3 districts but allows them as a right in C-4, C-5, and C-7 districts; definitions set thresholds (e.g., 25% of floor space, stock, or weekly revenue) for an "adult bookstore."
- DBNS reviewed HH’s permit applications, found HH’s submissions imprecise and contradictory, and concluded HH qualified as an adult bookstore or an adult service establishment; the BZA unanimously affirmed.
- HH sued the City seeking declaratory and injunctive relief under First and Fourteenth Amendment theories (as-applied and facial challenges) and state administrative law, and sought a preliminary injunction; the district court denied the injunction.
- On interlocutory appeal, HH contested only the denial as to its as-applied First Amendment claim, arguing the City’s enforcement functioned as a content-based prior restraint and that the DBNS/BZA lacked evidentiary support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether City’s application of the Ordinance to HH violated the First Amendment (as-applied) | HH: classification deprived them of speech at chosen location; application was content-based prior restraint motivated by public opposition | City: zoning is a content-neutral time, place, manner regulation aimed at secondary effects; HH may operate in other commercial districts | Court: No. Ordinance is TPM regulation subject to intermediate scrutiny; HH has reasonable alternatives; likelihood of success on merits is negligible |
| Whether the Ordinance’s application here was an unconstitutional prior restraint | HH: DBNS/BZA effectively barred speech at the site and should have inspected or allowed conditional opening | City: prior restraint is permissible if it is a proper TPM restriction with procedures; no evidence of censorial intent or lack of safeguards | Court: No. Prior restraint doctrine does not forbid reasonable zoning restraints; procedures available and no proof of unconstitutional censorial intent |
| Whether the City’s factual determination lacked evidentiary support creating a First Amendment injury | HH: DBNS relied on imprecise/contradictory projections and outside examples; BZA should have credited HH’s revised projections | City: BZA may consider all evidence (including remonstrators); state administrative remedies exist for erroneous determinations | Held: Evidentiary dispute does not by itself establish a First Amendment violation; state review is the proper forum for sufficiency challenges |
Key Cases Cited
- Young v. American Mini Theatres, 427 U.S. 50 (plurality) (framing adult-business zoning as regulation of secondary effects)
- City of Renton v. Playtime Theatres, 475 U.S. 41 (time, place, and manner analysis; intermediate scrutiny for content-neutral adult-business zoning)
- City of Los Angeles v. Alameda Books, 535 U.S. 425 (plurality/controlling concurrence addressing secondary-effects rationale and content neutrality)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (procedural safeguards relevant to prior restraints)
- City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (state-court remedies can protect First Amendment interests in zoning contexts)
- Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir.) (prior restraints may be legitimate TPM restrictions)
- BBL, Inc. v. City of Angola, 809 F.3d 317 (7th Cir.) (discussing Alameda Books and secondary-effects framework)