00-3118 Pleasureland Museum, Inc. v. Beutter, et al.

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“We take note that stimulation of human genital organs forms part of medically-recognized therapeutic treatment for female sexual dysfunction.

“Because certain therapeutic treatments for sexual dysfunction often necessarily entail the stimulation of the human genital organs, see, e.g., Handbook at 269-73, Section 125.22 needs to provide standards for determining which of those two uses – stimulation as a part of therapy or merely stimulation – takes priority and thus is a sexual device’s ‘primary’ use. We must remand for due consideration by the district court because the record does not contain any information of whether it is possible to distinguish a sexual device’s primary use from its auxiliary uses and the prevalence of each type of use, and such information is necessary in order to properly address this claim.

“We also conclude that the district court did not adequately consider plaintiffs’ fundamental rights challenges. At least two courts have found a ban on similar devices unconstitutional because they intruded upon the fundamental right to privacy, see Hughes, 792 P.2d at 1032; People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 370 (Colo. 1985), and the Eleventh Circuit has also raised similar questions. See Williams, 240 F.3d at 955-56 (holding that a similar statute was not facially unconstitutional but re manding for ‘as applied’ analysis); but see Kametches v. State, 251 S.E.2d 232, 234 (Ga. 1978) (finding that a ban on distribution of sexual devices did not invade privacy of adult or married couples); Coberly v. State, 640 S.W.2d 428, 430 (Tex. App. 1982) (concluding that prohibition on promotion of obscene devices did not violate individual right to privacy). In the present case, the district court did not address this issue specifically, and the record is too narrow to permit us to decide whether or to what extent Section 125.22 infringes upon a fundamental right. Accordingly, we must remand.”

“[W]e invalidate the Signage Restriction in Section 125.16(D)(1), which limits signage to ‘only the legal name of the enterprise,’ because it is substantially broader than necessary to achieve Mishawaka’s goals. Mishawaka fails to articulate a single reason why it is necessary to limit a sexually- oriented business’ signage solely to displaying its name. Under Section 125.16(D)(1), a sexually-oriented business will not be allowed to notify the public about what type of store it operates or what its hours of operation are. Such a drastic restriction on signage cannot be sustained without some sort of evidentiary support.”

Affirmed in part, Reversed in part, and Remanded.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Kanne, J.