How sex shops affect your community

The U.S. Supreme Court has ruled that communities cannot ban sexually-oriented businesses, stating that these establishments have certain First Amendment protections. However, the court has also ruled that communities can pass reasonable and content-neutral time-place-manner restrictions that are tailored to limit the negative secondary effects of such businesses, which research shows can be extensive and extremely harmful to communities.

As the Louisville Metro Council states in its comprehensive sexually oriented business ordinance passed in 2004:

The Council declares as a matter of public policy that in order to preserve surrounding neighborhoods, to prevent blight and the deterioration of the neighborhoods of Metro Louisville, protect property values, promote the return of residents and businesses to the neighborhoods, protect children from the deleterious effects of exposure to sexually explicit material and decrease the incidence of crime and juvenile delinquency, the licensing and regulation of adult entertainment establishments is a public necessity and is required in the interest of public health, safety and welfare as well as the economic and aesthetic well-being of the people.

The Louisville ordinance notes some negative secondary effects in greater detail:

Prostitution – “The concentration of sexually explicit movies and books and sexual paraphernalia in adult entertainment establishments which also house sexually explicit movies, as well as hotel rooms rented by the hour to ‘couples’ afforded free sexually explicit movies in the hotel room, have provided prostitutes an appealing and visible meeting place to ply their trade and have created public nuisances in otherwise respectable neighborhoods.”

Spread of disease – “Sexual acts, including masturbation, oral and anal sex, sometimes occur at unregulated adult entertainment businesses, especially those which provide private or semi-private booths, rooms, or cubicles for view films, videos, or live sexually explicit shows, which acts constitute a public nuisance and pose a risk to public health through the spread of sexually transmitted diseases.”

Property values/urban blight – “Adult entertainment activity tends to attract an undesirable clientele which discourages neighboring residents from undertaking civic improvements, causes residents and businesses to move elsewhere and frustrates attempts to attract new residences and businesses to come into an area, all of which contribute to a diminution of property values and to a general deterioration of neighborhoods.”

Pornographic litter – “Children, the family environment and residential neighborhoods suffer injury from the deleterious effects and harmful consequences resulting from the distribution of, and exposure to, certain sexually explicit items and devices.  This is particularly so when such items and devices are permitted to leave a business’s premises and litter the immediate family environment, neighborhood and certain areas where children are likely to be.”

Public nuisance – “The noise generated by patrons coming and going from adult entertainment establishments causes a substantial disruption to nearby residents and modest curtailment of the hours during which entertainment is offered to patrons of such establishments would afford some relief to persons living in those nearby residences without significantly interfering with the availability of adult entertainment.”

The Louisville ordinance also references other well-documented negative secondary effects, including:

  • personal and property crimes;
  • lewdness;
  • public indecency;
  • obscenity;
  • illicit drug use and drug trafficking; and
  • sexual assault and exploitation.

Compelling government interests
When communities attempt to restrict protected speech, they are required to demonstrate that there is a compelling government interest in doing so. This is to protect individuals and businesses from unnecessary and burdensome regulation that is passed capriciously or to punish an unpopular business.

The Community Defense Council has compiled a number of governmental interests upheld by the courts as valid reasons for prohibiting nude dancing, including:

  • concern for public morals;
  • protecting societal norms;
  • preservation of public decency;
  • promotion of general welfare, discipline, peace and good order;
  • prevention of degradation of person exposed;
  • prevention of prostitution and pandering;
  • preventing public commercial exploitation of sex and sex crimes;
  • controlling sites of crime problems, such as drug dealing and other illegal conduct;
  • concern about sexual discrimination; and
  • debasement and distortion of sex through crass commercialization.

Conclusion
So long as communities do not base their regulations on the content of legal materials or protected activities of a sexually oriented business, but confine them solely to legitimate government interests such as limiting negative secondary effects, there is long-standing legal precedent upholding strong, constitutionally sound ordinances.

Copyright © 2013, Daniel Weiss. All rights reserved. Used with permission.