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

By Alliance Alert

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.? 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. 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.

Full post as published by Constitutionally Correct on January 22, 2009 (boomark / email).