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Adult-Oriented Businesses

ImageDicta in a Feb. 13 decision by the Seventh Circuit may effectively allow small towns to prohibit all adult-oriented businesses, while not allowing larger cities to do the same.

The city of Marshall, Ill., located near Interstate 70, has a population of 3,700, and an area of 3.2 square miles. It is the county seat of Clark County, an agricultural area of 505 square miles and about 17,000 persons.

Although property owners face few restrictions on what they can build in the county’s unincorporated areas, Marshall has an elaborate zoning code, which requires that adult-oriented businesses be at least 1,000 feet from any school, church, daycare center, or public park.

Illinois One News, Inc., operates an adult book and video store in Marshall in a prohibited area. After the ordinance was passed, Illinois One filed suit in Illinois federal court, arguing the ordinance violates the First Amendment.

The district court found that about 12 percent of the city’s area is open to adult uses under the zoning code, and that only 4.1 percent could be devoted to such uses if the city were to require they be kept 1,000 feet from any residential zone, as well.

What the court held

Case: Illinois One News, Inc. v. City of Marshall, Illinois, No. 06-1828.

Issue: Can a city only 3.2 square miles in area limit adult-oriented businesses to 4.1 percent of the city?

Holding: Yes. The zoning still allows adequate opportunity for protected speech.

Illinois One objected to moving to a permitted area, because those areas were not as close to Interstate 70, the principal source of its business.

After a bench trial, the district court entered judgment in favor of Marshall, and Illinois One appealed. The Seventh Circuit affirmed, in a decision by Judge Frank H. Easterbrook.

The court rejected Illinois One’s argument that an inconveniently located 4 percent of the city is an inadequate avenue of communication under the First Amend-ment (the court accepted Illinois One’s contention that if it were to relocate within 1,000 feet of a residence, the city would amend its ordinance “to send it packing again.”).

The court reasoned that the Fourteenth Amendment’s command is directed to the states, and that, “how any given state slices up responsibilities among subdivisions normally is of no federal concern (cites omitted).”

The court hypothesized that, were the State of Illinois to designate Marshall a “bedroom community,” but permit the surrounding land to be used for adult businesses, there would be no constitutional objection, because Illinois would have satisfied its obligation to ensure ample opportunity for speech.

The court further noted that a constitutional doctrine based on municipal, rather than state, boundaries would have no long-term effect.

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Case Analysis

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The court observed, “If we were to hold that 4% of the land at the southern end of Marshall is too little, the City could annex some currently unincorporated land on the north and offer that instead as a site for adult businesses. But if land to the north of the City’s current border would supply a constitutionally adequate venue for speech if the City extended its border by half a mile or so, why is the same parcel
a constitutionally inadequate venue when it is outside the City’s border?”

The court thus concluded, “The constitutional rule is that a person have adequate opportunity to speak, not that the land be in one polity (the City of Marshall) rather than another (Clark County).”

The court acknowledged that, if a municipality is large, or if other adjacent jurisdictions all adopt the same rule, businesses would not have an adequate opportunity for speech. The ordinance at issue did not present such concerns, however.

Ultimately, the court declined to decide whether a municipality, even if it is small and land is available nearby, may prohibit all adult businesses, because the city of Marshall does have available land, even if it is not near the interstate. The court reasoned, “No business has a constitutional right to be adjacent to the ramp of an Interstate highway.”

Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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