Restricting Adult Entertainment

The Missouri Supreme Court recently upheld a state law, which prohibits the touching of dancers by patrons; requires buffer zones around dancers; bans public nudity in the establishment; restricts the use of alcohol and limits the hours of operations; and requires that the viewing of books and films in booths  be open to view from a central location. This was a significant victory for the State. The law has been described as one of the most far-reaching laws in the country and a model for other states. Some club owner closed their businesses and other reported that business was down 75% after the law went into effect. Proponents of the law would claim this as a good thing showing that the law was having an impact.

State Capitol

The process for adoption of this law was critical to the outcome of the case. In 2010 the General Assembly passed a law directed at the secondary effects of adult entertainment after holding extensive Committee hearings. Testimony at the Committee hearings included reports and other evidence from police officers, health officials, concerned citizens, and business owners relating to the connection between sexually oriented businesses and a variety of detrimental secondary effects, including crimes such as prostitution and drug use, health and sanitation problems, and decreased property values. The testimony included statements from experts concerning their research and scientific studies showing that sexually oriented businesses increased crime, drug use, and had other negative effects. A number of businesses and residents sued the State of Missouri challenging the constitutionality of the Act claiming that the law violated their freedom of speech as protected by the First Amendment to the United States Constitution.

Free Speech?

The Missouri Supreme Court determined that the law did not reduce protected speech and serves a substantial government interest in reducing the secondary negative effect of sexually oriented businesses. In upholding the law the law Court determined that it was content neutral and was aimed at the negative secondary effects of the activity and not the content of the restricted speech; it was a time place and manner restriction and not a total ban on speech; and it was designed to serve a substantial government interest leaving open alternative avenues of communication. The Court relied extensively on the record made at the Committee hearings at the time the General Assembly considered the legislation.

Local government officials may want to simply rely on the state law rather than enact local ordinances in order to save time, effort, and money. To the credit of Missouri, it used  an expert to assist in the drafting of this legislation, presentation of evidence for the Committee meetings and the  ensuing litigation.  After all a poorly drafted earlier Adult Entertainment law that focused on the advertising sexually explicit materials was held to be unconstitutional.  In the event a decision is made to adopt a local adult entertainment ordinance the Court’s opinion in this case provides a road map showing how to make a record to support a local ordinance.

Howard Wright@ 2011

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