Is a Strip Club More Harmful Than a Dirty Bookstore? Navigating a Circuit Split in Municipal Regulation of Sexually Oriented Businesses

I. INTRODUCTION While millions of Americans indulge in pornography,1 most people do not want it sold in their neighborhood. As a result, most cities have passed zoning regulations that govern where sexually oriented businesses may operate. Given First Amendment rights that protect sexually explicit "speech," cities must justify their regulations by pointing to studies that link the targeted businesses to a variety of societal and economic ills.2 In light of recent federal court decisions, however, there is now an open question as to whether those studies, some of which cities have relied upon for decades, are good enough to survive heightened scrutiny. The continued validity of municipal regulations across the country depends on the answer. In City of Los Angeles v. Alameda Books, Inc.,3 the Supreme Court - in upholding a city's regulation of sexually oriented businesses - admonished that, while municipalities must not meet "a high bar,"4 they "[cannot] get away with shoddy data or reasoning."5 Instead, the evidence a city relies upon to meet its initial burden of showing a substantial interest in the regulation "must fairly support the municipality's rationale for its ordinance."6 The Supreme Court's admonishment does not purport to suddenly subject a city's evidence to scrutiny under the framework found in Daubert v. Merrell Dow Pharmaceuticals, Inc.·7 instead, a more accurate reading might be that a city planner's observations scribbled on the back of a napkin should be rejected. But in the wake of the Alameda Books decision, a split has emerged between the Fifth8 and the Tenth9 Circuits as to whether the overwhelming majority of existing studies constitute "shoddy data or reasoning" when used to justify broad zoning ordinances affecting every type of adult business. This divide is likely to widen even further as other federal circuits inevitably encounter the same question as cities across the country rush to drive purveyors of pornography to their fringes and beyond. The Tenth Circuit has held that on-site and off-site adult businesses10 are "reasonably similar businesses," that will have reasonably similar effects, and under the Supreme Court's standard, it is up to the ordinance's opponent to show otherwise.11 But the Fifth Circuit took a decidedly different view, holding that cities cannot rely on studies that do not differentiate between on-site sexually oriented businesses and off-site sexually oriented businesses.12 The Fifth Circuit reasoned that it is not reasonable to assume these businesses carry the same negative secondary effects.13 As a result, under what is now the controlling precedent in the Fifth Circuit, a city seeking to regulate off-site sexually oriented businesses must undertake the great expense of commissioning an entirely new study to prove the seemingly obvious: that an adult bookstore wedged between an elementary school and homes in a suburban neighborhood may result in negative secondary effects on the surrounding area, such as decreased property value. This is not the law as envisioned by the Supreme Court in Alameda Books. This Comment argues that the Tenth Circuit's approach properly interprets the Supreme Court by providing deference to cities at the initial stages of litigation while still ensuring that cities are ultimately not relying on "shoddy data or reasoning."14 The Fifth Circuit has improperly interpreted the initial evidentiary burden a city must meet when proving secondary effects by forcing municipalities to differentiate between on- and off-site businesses. Although a city cannot rely on shoddy evidence in zoning adult businesses, the Supreme Court never meant to create such a high bar for cities to overcome in meeting their initial burdens.15 While the First Amendment rights of those owning and operating sexually oriented businesses are well established, the protection of those rights does not require an evidentiary burden so high that cities are unable to address potentially serious problems that may affect their citizens. …