The Law and the Skin Trade in the Windy City

Seventh Circuit Gives the Nod to “Hours of Operation” Ordinance for Adult Bookstore

By J. D. Obenberger, Attorney at Law
© 1999 J. D. Obenberger, All Rights Reserved

On some days, they meet literally the Courtrooms in the Clouds.

On the lofty twenty-seventh floor of the Everett McKinley Dirkson Federal Building at the corner of Jackson on Dearborn in Chicago’s Loop, meets the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit court hears appeals from the U. S. District Courts in Wisconsin, Illinois, and Indiana. In the large majority of cases, what the Seventh Circuit says, in those States, is the Law of the Land, because the only appeal possible from what the Seventh Circuit says, is an application for a writ of certiorari to the United States Supreme Court.

Though there are thousands of litigants knocking on its door every year, there are very, very few cases in which anyone has a right to take a case “all the way to the Supreme Court.” With a few exceptions here and there, the Supreme Court just takes the cases it wants to look at, and declines certiorari in all the others. And the United States Supreme Court doesn’t take a lot of cases. Last term, 5,253 applications for certiorari were filed. The Court granted review in 75 cases. With nine justices and a staff of hundreds, it issued only 36 Opinions deciding cases in the last term. That’s it. For the whole country. That’s less than one from each of the States of the Union during the term.

And that gets us back to the 27th floor at Jackson and Dearborn. For the large majority of Federal litigants in this three-state Circuit, the Seventh Circuit Court is the end of the trail, the court of last resort, the Law of the Land, a sort of Supreme Court for this part of the country. As powerful as it obviously is, it is virtually unknown by the man in the street. This month’s offering, submitted for your consideration, involves the men in the street who frequent an adult bookstore in Hallie, Wisconsin, and as a result of the reach of the Seventh Circuit court, the men who frequent - - - and who own - - - adult bookstores in three Midwestern States.

On July 26, 1999, the Seventh Circuit handed down its decision in DiMa Corporation v. Town of Hallie, --- F.3d --- , 1999 WL 538176 (7th Cir., 1999), upholding the constitutionality of an “hours of operation” ordinance directed at the hours of adult bookstores, enacted in the tiny hamlet of Hallie, Wisconsin (Population 4,728 souls as of last October, and located somewhere in the woods between Eau Claire and Chippewa Falls). The opinion is both disturbing and intriguing at the same time.

The Ordinance affects the operation of the “Pure Pleasure” bookstore, which had been operating 24/7. The Ordinance restricted its operation to the same hours which limit Wisconsin liquor establishments, requiring that they be closed 2:00 a.m. till 8:00 a.m., Monday through Friday, from 3:00 a.m. till 8:00 a.m. on Saturday, and from 3:00 a.m. till noon on Sunday.

The part of the decision that is neither particularly new nor novel is that, in its analysis, the court turned its attention to earlier cases fixing “time, manner, or place” restrictions on adult expression. You will recall that a line of Supreme Court opinions have found certain ordinances designed to combat the purported “secondary effects” of adult, sexually-oriented expression (supposedly an increase in general crime in the near vicinity along with a decay in property values, the spread of urban blight, etc.) to be constitutional in some cases, and it states that they should be assessed for their constitutionality as though they were content-neutral restrictions (The Seventh Circuit in Dima frankly admits that such regulations, based as they are on the adult-content of the expression are not in fact content-neutral, but asserts that the regulations should be treated as though they were content-neutral. If you can grasp any logic in this concept, you are one step ahead of me.). Content-neutral analysis is explained in Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Such an analysis was applied to an adult entertainment zoning scheme upheld in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986). (By the way, you should know that the zoning scheme upheld by the Supreme Court in Renton provided over 400 acres of land for adult-entertainment in Renton, Washington, enough to serve the whole Pacific Northwest, and a fact conveniently overlooked when government officials cite the Renton case to justify restrictions that leave little or no land available for adult entertainment, as they recently did in DuPage County.)

“Time, manner, or place” regulations affecting the operation of adult businesses will be upheld, according to the Seventh Circuit in DiMa, and do not offend the First Amendment, if they 1) are justified without reference to the content of the regulated speech, 2) are narrowly tailored to serve a significant government interest, and 3) leave open ample alternative channels for communication of the information.

The DiMa court noted that the book store never contended that the third ground presented a constitutional problem, because under the ordinance, it would remain open about three-quarters of the hours in a week. Nor, according to the court, did the bookstore challenge the ordinance on the second ground, because it appeared to concede that the Town had a significant interest in combating “secondary effects”. No, the battleground of this case, in those courtrooms in the clouds, was on the first element of the test: Was the restriction contained in this ordinance justified without reference to the adult-oriented content?

Perhaps the most disturbing part of the DiMa opinion is that the ordinance was upheld as constitutional despite abundant proof in the District Court - - the Federal trial court - - that, in the words of the Seventh Circuit court, “[A]t least some of the Board members voted for the ordinance because of local opposition to the ‘vice’ of sexually explicit materials . . The record shows that . . [s]ome members of the Board desired to close down Pure Pleasure altogether because of numerous complaints from Hallie residents who objected to having an adult bookstore in their town. . . Recognizing that the Constitution did not permit proscribing sexually explicit materials, at least some of the Board members seemed willing to enact the ordinance because it was the most that they could do consistent with the Constitution.” The Seventh Circuit’s reaction to this proof? “[A]ttacking the ordinance because it was enacted by persons with ‘impure hearts’ gets DiMa nowhere.” Whew!

As the eminent constitutional scholar, Professor Lawrence Tribe, notes in American Constitutional Law, 2d Ed., Sec. 12-5, p. 814, “If the first amendment requires an extraordinary justification of government action which is aimed at ideas or information that government does not like, the constitutional guarantee should not be avoidable by government action which seeks to attain that unconstitutional objective under some other guise.” Tribe cites numerous cases in which improper legislative purposes to evade constitutional guarantees have led to a determination that laws were unconstitutional. See, for example, Rogers v. Lodge, 458 U.S. 613 (1982) in which an at-large voting scheme was invalidated because no Black had ever been elected, and presumably that was the intent of at-large rather than district selection, Yo Wick v. Hopkins, 118 U.S. 356 (1886) invalidating a scheme to license laundries as motivated by an intent to exclude Asians, and in the first amendment context, Grosjean v. American Press Co., 297 U.S. 233 (1936) overturning a tax the press because motivated to limit the circulation of newspapers critical of the government, Epperson v. Arkansas, 393 U.S. 97 (1968) overturning a state statute prohibiting the teaching of the theory of evolution as motivated by an intent to establish a religious viewpoint, and Stone v. Graham, 449 U.S. 602, 612 (1980) overturning a state law requiring the posting of the ten commandments because it was motivated by religious intent, among many others.

The town Board of Hallie performed a rather cynical act that is discussed in some detail in the Seventh Circuit opinion - - - and the effect of the decision is to wink back at the members of the town Board. Normally, to meet constitutional standards, municipal bodies must go through the cynical-enough pretense of examining a report or reports about the “secondary effects” of adult entertainment in another city at the time they pass their own restrictions and regulations, determine that the “secondary effects” have the potential of harming their own important interests, and determine that the restrictions are necessary to deal with them. But here, the Town of Hallie did no such thing upon enactment. The opinion implies that they just passed it. Only after the ordinance was under attack legally, in Court, facing a motion for summary judgment, did it apparently go through the motions of finding legislative facts with which to justify the need for an ordinance restricting the hours of operation. The District Court let them get away with it, and the Seventh Circuit lets it go almost without mention. It seems that the Federal courts allowed Hallie to fix an ordinance that seems to have been unconstitutional on its face when it was passed by later examining a study while the ball was in play, after the lawsuit began.

How did the Board do so? Did the members look at studies of the incidence of crime and decrease in property values in any similar, isolated, rural communities up in the woods? In a word, no. In what was almost too much for the Seventh Circuit, the Town Board of Hallie just relied on the examination of studies that the municipal officials of another City, West Allis, Wisconsin relied upon in enacting a similar ordinance. It appears that West Allis, itself, was looking at studies actually performed in yet other cities. The DiMa court calls this “a fairly meager record to support Hallie’s justification of combating crime.” The DiMa Court notes that West Allis is part of a large metropolitan area, unlike Hallie. It is apparent that the examination of studies by the West Allis Council demonstrates little about the effects of a book store in a tiny town up in the North Woods. But the Seventh Circuit let it slide, stating that while Hallie had made enough of a showing that the ordinance was a reasonable “time, manner, or place” regulation, “it has only minimally done so.”

And this is what leads to what is intriguing about the decision. The court upheld the ordinance, finding it reasonable only with a “meager” and minimal record, because it stated, there was no proof by Pure Pleasure that there would be any economic impact to the book store on account of the ordinance. The Seventh Circuit noted that it knew nothing about the income generated during the prohibited hours, and that it knew nothing about the profit that might be lost, if any. The court hinted at length that this might have made a difference in the outcome. The court hinted that the ordinance was upheld on this record only because it was an “hours of operation” ordinance without evidence of adverse economic impact, and that a more devastating ordinance might not have been upheld on this record. In this respect, the Seventh Circuit is following a path established by the Illinois Supreme Court in County of Cook v. Renaissance Arcade, 122 Ill.2d 123, 522 N.E.2d 73, 82, 118 Ill.Dec. 618 (1988) in which the Illinois Court finally upheld the presumption of validity attaching to the amortization clause in the Cook County Adult Use Ordinance, against claims that it amounted to an unlawful taking in violation of the Due Process clause of the XIVth Amendment, “Because the defendants failed to present any evidence of their purchase costs, improvement costs, loss of income, depreciation, or costs of relocation.” Id.

The lesson to be learned by adult entertainment lawyers and the owners of adult establishments from the language of DiMa seems to be, that in attacking the “reasonableness” of allegedly-reasonable “time, manner or place” regulations, be sure to present evidence of the adverse economic impact of the regulation. If the court cares about nothing else involving the attack on your freedom of expression, it just may care about how much money the ordinance will cost the business.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com