05-1286 New Albany DVD, LLC, v. City of New Albany

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Constitutional Law
Adult-oriented businesses

Theft and littering are insufficient rationales, absent evidence, to justify a city's zoning rules against sexually oriented businesses.

"Recognizing that prior studies had lumped bookstores, peep shows, and exotic dancing establishments together, New Albany offered some anecdotal justifications in the district court. It cited testimony in some earlier cases by people complaining about pornographic litter near adult bookstores, and it suggested that these stores may expose their customers to thefts. The former line of argument rests on the fact that some customers are bound to throw away wrappers, which may have images inappropriate for children. The 'theft' line of argument starts with the premise that many customers of adult establishments pay in cash, which makes them a target for thieves."

"The theft argument is paternalistic. Why can't customers make their own assessments of risk? The norm under the first amendment is that government must combat harm to readers with disclosures rather than prohibitions of speech. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976); American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd mem., 475 U.S. 1001 (1986). Just as there is no hecklers' veto over speech, there is no 'thieves' veto.' The police must protect the readers from the hecklers or thieves, rather than ease their workload by forbidding the speech."

Remanded.

05-1286 New Albany DVD, LLC, v. City of New Albany

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Easterbrook, J.

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