Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review
Among the petitions reviewed during the Supreme Court’s September conference was a request[1] to reverse a Seventh Circuit decision, City of Indianapolis v. Annex Books, in which the court invalidated an Indianapolis ordinance that restricted the permissible hours of operation for “adult entertainment businesses.”[2] The Supreme Court denied certiorari.[3] In that case, the Seventh Circuit held that the Indianapolis ordinance was unsupported by evidence of a justifiable government interest to restrict First Amendment rights. The Seventh Circuit’s decision employed a foundational standard of free speech jurisprudence originally set forth in Renton v. Playtime Theaters[4] and the denial of certiorari confirms the interpretation of this standard by lower courts. The Supreme Court was correct to allow the Seventh Circuit’s holding to stand. Had the Court granted certiorari and reversed the Seventh Circuit’s decision, this case would have signaled the first major shift in time, place, manner jurisprudence in almost three decades.
The Evolution of Time, Place, Manner Restrictions of Sexual Content
The government’s authority to restrict certain kinds of speech has expanded and contracted over time. In Renton v. Playtime Theaters, the Court established the government’s authority to regulate protected speech, provided the restriction is not based on the content of that speech.[5] The court held that the government can regulate only the “time, place, and manner” in which otherwise protected speech is carried out.[6] In Renton, the Court upheld a local zoning law that barred adult entertainment businesses from locating within 1,000 feet of residential neighborhoods, churches, and schools.[7] The Court established a three-step analysis for determining the constitutionality of content-based restrictions on the time, place, and manner of certain speech that remains the standard today.
First, courts determine whether the statute constitutes a complete ban on speech or if it merely regulates the time, place, and manner of that speech.[8] If the latter is true, courts determine whether the regulation is a content-based restriction on the nature of speech or a content-neutral attempt to control the secondary effects of that speech (e.g., violent crime and prostitution that might accumulate near adult-centric businesses).[9] Content-neutral regulations merit intermediate scrutiny, in which case a court will only uphold a statute if it is “designed to serve a substantial governmental interest and [does] not unreasonably limit alternative avenues of communication.”[10]
Renton holds that a “substantial governmental interest” requires that the enacting legislature provide “evidence . . . [that] is reasonably believed to be relevant to the problem” the statute attempts to address.[11] Legislatures cannot merely state that they have an interest to protect. They must provide concrete evidence that the regulation will have an impact on the government’s ability to protect that interest. The Renton court did not indicate what kind of evidence is required, but courts usually give deference to the enacting legislature.[12] These principles have been reaffirmed by the Supreme Court and applied by lower courts since Renton and are considered the standard for content-neutral time, place, manner regulation jurisprudence.[13]
The Seventh Circuit Attempts to Set the Record Straight
Although the method of evaluation for these types of laws is fairly consistent in federal jurisprudence, Annex Books raised an issue that requires clarification: How much deference must courts give to enacting legislatures’ “reasonable belief” that restrictions will have a legitimate impact on certain “secondary effects” of adult-centric businesses.[14] More specifically, how “reasonable” must that “belief” truly be, what evidence must be provided to support that “belief,” and to what extent are plaintiffs able to rebut that evidence with their own data?[15]
In 2003, Marion County, Indiana passed a city-county ordinance designed to “prevent the deleterious effects of adult entertainment businesses” by restricting hours of operation.[16] The ordinance prohibited these businesses[17] from being open between midnight and 10:00 AM and on Sundays.[18] Along with other local adult businesses, Annex Books brought suit against Indianapolis in 2003, challenging the ordinance’s constitutionality.[19] To support enactment of this speech-restrictive statute, the City compiled reports, judicial rulings, and other evidence of increased levels of crime at and around the businesses it aimed to regulate.[20] Because the district court accepted these statistics as evidence to support the statute, Annex Books lost its suit.[21] However, four years after the regulation went into effect, new studies were completed that contradicted the evidence provided by Indianapolis.[22] Annex Books brought another suit based on this new data against Indianapolis and presented statistical evidence that, instead of lowering crime around the City’s adult entertainment businesses, violent crime rates had actually increased during the restricted times, especially on Sundays.[23] Additionally, Annex contended that the reduction of non-violent crime that took place after the ordinance went into effect could be attributed to the lack of foot traffic in and around these businesses while they are closed[24] or other changes made by the statute which were entirely unrelated to hours of operation.[25]
The District Court ruled in favor of the City. On appeal, the Seventh Circuit reversed, holding that the plaintiffs’ evidence was sufficient to controvert Indianapolis’ assertion of a connection between this ordinance and their interest in reducing secondary effects.[26] In doing so, the circuit court referenced Renton and its progeny, but did not indicate that it was announcing a new rule. Rather, as Annex Books argued, the court merely applied Supreme Court precedent.[27] Indianapolis petitioned for review, alleging that the Seventh Circuit’s reading of Renton established a new requirement for “highly specific, statistically-significant empirical evidence” that did not previously exist.[28]
By denying Indianapolis’ petition, the Supreme Court essentially accepted the Seventh Circuit’s decision. The Court did not announce their reasoning behind this denial. However, by denying certiorari, the Court essentially indicated that the Seventh Circuit’s approach was an appropriate reflection of Renton.[29] The only other legally sound option would have been to grant certiorari and affirm the Seventh Circuit decision, thus clarifying that Renton does leave room for plaintiffs to rebut evidence used to support regulations. In either case, the ordinance remains invalid.
No Need to Establish a New Standard: Renton Works…
Under Renton, Courts generally defer to the regulating body, but “the evidence matters, and the outcome of any particular case is not preordained.”[30] Representatives for Indianapolis characterized the Seventh Circuit’s ruling in Annex Books as “in direct conflict” with Renton and application of its standards in other circuits.[31] In its petition, Indianapolis repeatedly referred to and denounced the “highly-specific empirical evidence”[32] standard, which they asserted had been “announced” by the Seventh Circuit.[33] The petition was rife with references to “conflicting” cases, each one portrayed as in keeping with the Renton standard and incompatible with Annex Books.[34] By leaning heavily on cases in which the party challenging the law provided insufficient or unreliable data, Indianapolis portrayed the Renton standard as unwaveringly deferential to enacting legislatures, while ignoring the many times that courts have considered evidence from both sides and ruled in favor of whichever party is able to support their argument with hard data.[35]
Annex Books also offered an extensive list of cases in which appellate courts invalidated overly restrictive statutes. In many of these cases, the courts’ decisions turned on data provided by plaintiffs to controvert the government’s evidence.[36] Throughout these cases, one thing remained clear: Renton suggests deference to the government, but does not require absolute submission to the government’s will.[37] Rather, the analysis must be fact-driven and case-specific, with courts remaining open to the weight of the evidence as presented by each side.[38] The Seventh Circuit decision was entirely in line with the jurisprudence that followed Renton. Therefore, there was no need for review and the Indianapolis restriction shall remain invalid.
…But If Renton Is Broken, Fix It!
If the Seventh Circuit’s reading of Renton and later cases did not reflect the law, the “reasonable belief” standard should be clarified by the Supreme Court in favor of the Seventh Circuit’s interpretation. When a plaintiff challenging a time, place, manner restriction presents significant evidence that the restriction does not accomplish its intended goal, under Renton, there is no justification for allowing that restriction to continue.
Overturning Annex Books would give government entities complete freedom to define their own “substantial governmental interest.” This kind of unfettered authority of government would dramatically reduce judicial protection for those who are most at risk of being singled out for restriction in the name of “secondary effects.” Overturning Annex Books could also potentially lead to a reduction in the level of scrutiny required in speech-restrictive laws to a rational basis standard, one that has not been used to justify restrictions of this nature for decades. This possible decrease in the level of scrutiny could effectively eliminate any shield that remains to prevent local governments from completely banning adult businesses altogether.
Conclusion
Denial of Indianapolis’ petition for review by the Supreme Court marks another reaffirmation of the Renton standard for time, place, manner restrictions on speech. Intermediate scrutiny has long been understood to require that statutes only be upheld where they are “designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.”[39] For Indianapolis’ ordinance to be valid, the City would have needed to present not only some evidence of a government interest sufficient to constrain free speech, but sufficient evidence. Although the Renton standard requires that deference be given to the enacting legislature, it does not require unqualified capitulation to the will of the legislature. When those subject to restrictions evaluated under Renton are able to controvert the legislature’s evidence with their own data, precedent requires that the ordinance be invalidated. The Supreme Court decision to deny Indianapolis’ certiorari request confirms the appropriateness of this precedent. The Seventh Circuit’s invalidation of Indianapolis’ adult entertainment business hour restriction was not only entirely in line with precedent, but also an important reinforcement of First Amendment rights.
[1] Brief on Petition for Writ of Certiorari. Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir. 2014) (No. 13-1441).
[2] Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136.
[3] 2014 Term Court Orders 10/6/14 Order List, Supreme Court of the United States (Oct. 6, 2014), http://www.supremecourt.gov/orders/courtorders%5C100614zor.pdf.
[4] 475 U.S. 41 (1986).
[5] Id.
[6] Id. at 46.
[7] Id. at 43.
[8] Id. at 46.
[9] Id. at 47.
[10]Id. at 47. For a more substantial discussion of the distinction between strict and intermediate scrutiny as it relates to content-based versus content-neutral restrictions of protected speech, see Geoffrey R. Stone, Content-Neutral Restrictions., 54 U. Chi. L. Rev. 46 (1987).
[11] Id. at 51-52.
[12] See Renton 475 U.S. 41; Turner Broad. Sys. v. FCC, 512 U.S. 622 (U.S. 1994); City of Erie v. Pap’s A.M., 529 U.S. 277 (U.S. 2000); City of L.A. v. Alameda Books, 535 U.S. 425 (U.S. 2002); Interstate Outdoor Adver., L.P. v. Zoning Bd. of Mt. Laurel, 706 F.3d 527 (3d Cir. N.J.2013); H & A Land Corp v. City of Kennedale, 480 F.3d 336 (5th Cir. Tex. 2007); N.W. Enters. v. City of Houston, 352 F.3d 162 (5th Cir. Tex. 2003);
[13] Id.
[14] Petition for Writ of Certiorari, at i.
[15] Id.
[16] Id. at App. 101.
[17] This ordinance covered several different types of adult businesses. In regards to adult bookstores like the ones owned and operated by Plaintiffs, such businesses are defined as “an establishment having at least twenty-five percent (25%) of its (1) Retail floor space used for the display of adult products; or (2) Stock in trade consisting of adult products; or (3) Weekly revenue derived from adult products.” Indianapolis – Marion County, IND. Code of Ordinances Sec. 807-302(d) (2003).
[18] Id.
[19] Annex Books v. City of Indianapolis, 2003 U.S. Dist. LEXIS 19878 (S.D. Ind. Nov. 3, 2003).
[20] Petition for Cert. at 101-104.
[21] Annex Books, 2003 U.S. Dist. LEXIS 19878.
[22] Appellee-Respondent Brief in Opposition to Petition for Cert., Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir. 2014) (No. 13-1441) at 3-9.
[23] Id. at 3-4.
[24] “[S]huttered shops can’t be robbed at gunpoint, and they lack customers who could be mugged. If that sort of benefit were enough to justify closure, then a city could forbid adult bookstores altogether.” Annex Books, 740 F.3d at 1138.
[25] The ordinance also required changes to the configuration of video viewing booths, making the interior more visible and less likely to be used for illicit activity. This change reduced the likelihood and frequency of acts of public indecency and could therefore account for a reduction in arrests. Brief of Opposition of Petition for Cert. at 9.
[26] “The City did not use a multivariate regression to control for other potentially important variables, such as the presence of late-night taverns. The change in the number of armed robberies is small; the difference is not statistically significant. The data do not show that robberies are more likely at adult bookstores than at other late-night retail outlets, such as liquor stores, pharmacies, and convenience stores, that are not subject to the closing hours imposed on bookstores.” Annex Books, 740 F.3d at 1137.
[27] Brief in Opposition to Petition for Cert. at 10.
[28] Petition for Cert. at i.
[29] Denial of a petition for certiorari does not constitute binding precedent on lower courts; rather, “all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.” Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (U.S. 1950). However, denial does make the ruling of the lower court binding and final, and would likely not have happened had the Court deemed the Seventh Circuit’s handling of this case as an egregious mishandling of the Renton standard (as is suggested by Indianapolis in their petition).
[30] Brief in Opposition to Petition for Cert. at 10.
[31] Petition for Cert. at 15, 21, and 38.
[32] Id. at i, iv, 10, 11, 13, 15, 16, and 38.
[33] Id. at 7, 9, 14, 18, 19, 36, and 38.
[34] Id.
[35] Id.
[36] Annex Books’ Brief in Opposition to the Petition for Cert. references the following cases in this way, among others: Entertainment Productions, Inc.v. Shelby County, Tenn., 721 F.3d 729, 737 (6th Cir.2013); Compare Encore Video v.City of San Antonio, 330 F.3d 288 (5th Cir.); H & A Land Corp. v. Kennendale, 480 F.3d 336 (5th Cir.); Reliable Consultants, Inc. v. City of Kennendale, 552 U.S. 825 (2007); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186, 1194 (9th Cir. 2004); White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 173 (2d Cir. 2007); Doctor John’s, Inc. v. City of Roy, 465 F.3d 1150, 1169 (lOth Cir. 2006); Imaginary Images, Inc. v. Evans, 612 F.3d-736, 747 (4th Cir. 2010).
[37] “This is not to say that, provided that the now-standard list of studies and judicial opinions is recited, no plaintiff could ever successfully challenge the evidentiary basis for a secondary-effects regulation. Albeit light, the burden on the government is not non-existent, and a plaintiff may put forth evidence to further augment that burden.” Id. at 13, [quoting Richland Bookmart, Inc. v. Knox City, Tenn, 555 F.3d 512 (6th Cir. 2009)].
[38] Id. at 13.
[39] Renton, 475 U.S. at 47.
