The district court erred when it granted the adult-business establishments' summary judgment in a challenge to the city's ordinance prohibiting adult businesses from operating in the same location because the plaintiffs did not produce sufficient evidence to justify summary judgment.
Relying upon information from the police department in 1977 that crime rates grew at higher rates in areas of the city where adult entertainment businesses were concentrated, the city passed an ordinance that required adult businesses to be geographically dispersed. Specifically, no two adult entertainment businesses could be located within 1,000 feet of each other. In 1983, the city amended the ordinance to provide that no two adult entertainment businesses could operate at the same location, even if operated in conjunction with another adult entertainment business at the same establishment.
The two plaintiffs operated their adult businesses from the same location. Both sold adult print media and operated an "adult arcade." In 1995, after a city inspector informed both parties that they were violating the ordinance, they sued, claiming that enforcing the ordinance would violate their First Amendment rights. The district court granted summary judgment in favor of the plaintiffs, finding that, when the city amended the ordinance in 1983, it had no basis for believing that the operation of combined (as opposed to neighboring) adult businesses led to harmful secondary effects. Therefore, according to the district court, the ordinance failed to satisfy strict scrutiny. The city appealed. The Ninth Circuit affirmed on alternative grounds. The U.S. Supreme Court reversed and remanded in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). The Supreme Court's opinion required courts to employ a new burden-shifting framework when applying the traditional Renton analysis, and provided that a municipality's justification must not be that its regulation would reduce secondary effects simply by reducing speech proportionately. In an action to determine whether an adult use ordinance is reasonably designed to serve a substantial government interest, the government bears the initial burden of producing evidence relied on to reach the conclusion that the ordinance furthers its interest in reducing the negative secondary effects associated with adult entertainment. If the government produces evidence that it reasonably believed to be relevant to its rationale for passing the ordinance, then the burden shifts to the plaintiff to cast doubt on this rationale either by showing that the evidence produced does not support the government's conclusion or by producing evidence that disputes the government's factual findings.
In turn, the Ninth Circuit remanded the matter back to the district court. The district court granted summary judgment for the plaintiffs, finding that the ordinance could not withstand intermediate scrutiny and violated the First Amendment. The district court struck the testimony of the city's expert and it rejected the city's objections to declarations by the plaintiffs' two witnesses. The Ninth Circuit reversed.
The Ninth circuit determined that the district court erred by granting summary judgment on the issue of whether the plaintiffs had presented actual and convincing evidence casting doubt on the city's rationale for its ordinance. The appellate court did not disturb the district court's decision to strike the declaration of the city's expert witness because she had no experience or familiarity with the adult entertainment industry. The district court did, however, err by rejecting to the city's objections to the declarations of the plaintiffs' witnesses because the court treated these declarations as "actual and convincing" enough to justify summary judgment, despite their obvious and important shortcomings and the declarants' facial bias. Therefore, the Ninth Circuit remanded the matter.
Illinois Municipal League
500 East Capitol Avenue
Illinois Municipal League
P.O. Box 5180