First Amendment Case Analysis

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In light of the decision, it should be expected that some Wisconsin municipalities will enact total bans on adult-oriented businesses.

Governing precedent in Wisconsin state courts provides that a municipality may not do that. In Town of Wayne v. Bishop, 210 Wis.2d 218, 565 N.W.2d 201 (Ct.App.1997), the town enacted a zoning ordinance that, on its face, permitted adult-oriented businesses. However, no actual areas of the town were given a classification that allowed such businesses.

The Wisconsin Court of Appeals held the zoning ordinance constituted a total ban, in violation of the First Amendment. Id., 565 N.W.2d at 207.

Wisconsin state courts remain free to hold that the Wiscon-sin Constitution provides greater free speech protection, but any municipality can remove any case alleging a violation of the U.S. Constitution to federal court. If the municipality is small enough, and the surrounding rural areas do not have identical bans on adult businesses, the municipalities have a good chance of prevailing, based on the court’s dicta.

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Since Bishop was decided, various municipalities have adopted various rules designed to achieve a ban on adult businesses, by making it unprofitable to run them. Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003)(ban on alcohol in sexually-oriented businesses); Schultz v. City of Cumberland, 2328 F.3d 831 (7th Cir. 2000)(limitation on hours of operation); and Kraimer v. City of Schofield, 342 F.Supp.2d 807 (W.D.Wis.2004)(burdensome licensing process without time limit for approval of permit).

Given the decision in the case at bar, municipalities might not need to adopt such subterfuges any longer, but can outlaw the undesirable businesses directly.

The question is how small a city must be before it can do that.

The court only states that it would be unconstitutional for Anchorage, Alaska (1,961 square miles) and Chicago, Illinois (234 square miles) to exclude all adult businesses. Not even Milwaukee is as large as those, however, so arguably, at least, all municipalities in Wisconsin would be small enough to outlaw all sexually-oriented businesses and survive First Amend-ment scrutiny in federal court (presumably, entire counties would be too large).

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David Ziemer can be reached by email.