Tips for Successfully Regulating Sexually Oriented Businesses

Abstract:     
This article reviews the current legal rules and techniques for a balanced and successful legal regime for regulating sexually oriented businesses. It begins by looking at social and constitutional issues generated by sexually oriented businesses, followed by a discussion of legal bases for successful regulating and two permissive forms of regulation (zoning and licensing). Nine key points in evaluating regulations of sexually oriented businesses are listed, followed by a sampling of five recent cases (from Connecticut, Kentucky and Utah).

Most attempts to regulate sexually oriented businesses are made at the local government level, and these attempts seldom seek to directly ban or prohibit such businesses. To do that requires a ruling that the business falls wholly into the category of obscene conduct, without First Amendment protection. Instead, cities and counties prefer to regulate the ways such businesses operate, with ordinances imposing so-called time, place and manner restrictions. These regulations are usually upheld as legitimate attempts to minimize the adverse secondary effects of such businesses, such as blight, crime and sexual misconduct. Successful ordinances are carefully drafted to identify specific secondary effects that are targeted, relate the restrictions to those targeted effects, avoid vagueness and over-breadth, and ensure adequate alternative means for that type of communication. Although some ordinances regulating sexually oriented businesses continue to be successfully challenged, careful drafting can forestall almost all litigation.

Keywords: Sexually oriented businesses, First Amendment, freedom of expression, conduct, municipal law, ordinances, strict scrutiny, obscenity, indecency, pornography, zoning laws, commercial law

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