Benjamin, Aaronson, Edinger & Patanzo, P.A.

Alameda Books

Earlier this year we wrote about the Supreme Court of the United States case of City of Los Angeles v. Alameda Books, Inc.. We viewed this decision as being positive for First Amendment and adult entertainment freedoms even though there were several opinions issued by the various Justices leaving several interpretations of what the Court truly had ruled.

As was expected, the Federal Circuit Courts now are dealing with the aftermath of Alameda Books.  Each circuit either is or in the near future will have to deal with how they analyze the decision and what it means for that circuit.  The Fifth Circuit Court of Appeals just recently had the opportunity to review some of the issues presented in Alameda Books in the case of Encore Videos, Inc. v. City of San Antonio.  Although the reasoning for the decision in Encore Videos is hard to follow and understand, the net result of Encore Video was the strengthening of the “narrowly tailored” prong of this type of analysis.  In layman’s terms, Encore Video puts an additional burden or better put, requires that the Ordinance in question be narrowly tailored to fulfill its stated objectives.

For example, in Encore Video, the Court noted that in fact there may be a substantial government interest in the City of San Antonio regulating adult bookstores.  Yet, the Court noted that the ordinance was not narrowly tailored to fulfill this goal as it would apply to any store that had as much as twenty percent of its inventory adult products.  The Court ruled that the ordinance therefore was not narrowly tailored as all the documentation and evidence presented by the government in their studies may have shown that there was a substantial government interest in regulating adult bookstores and video stores, but none of the studies dealt with stores that allowed no viewing on the premises and only had a threshold of as little as twenty percent of its inventory classifying it as adult.

In essence, Encore Video shows that no longer can the government just cite studies from other jurisdictions and say that their ordinance serves a substantial government interest and is narrowly tailored.  Rather now the Courts will actually look at these studies and evidence to see if the ordinance furthers a substantial government interest and if that ordinance is narrowly tailored to fulfill the governmental interest shown by the studies and evidence.

We expect that over the next couple of years, to report to you on other decisions dealing with the fall out of Alameda Books. Encore Video was decided by the Fifth Circuit.  No one will ever accuse the Fifth Circuit of being liberal, progressive or a great fan of the First Amendment and adult entertainment.  The decision in this case by the Fifth Circuit can only be interpreted as positive for adult entertainment and First Amendment freedoms.  It is also a good indicator that future Circuits might just require the government to show a substantial government interest and actually require them when passing ordinances to have those ordinances narrowly tailored.

On another note, the world has just gotten significantly worse for First Amendment and adult entertainment.  Unless you have been living in a closet or vacuum, you must be aware by now that we now have a conservative President with a very conservative House of Representatives and unfortunately now with a conservative Republican Senate.  Expect some legislation over the next couple of years to come about involving pornography, adult entertainment, and child indecency acts.

The legislation will be bad enough.  However, the real fear comes from that fact that now your President, George W. Bush, has carte blanche to appoint those die hard conservatives to the Federal Bench including the various Circuit Courts of Appeals.  In fact, reports have him already resurrecting two names that were flatly shot down by the Democratic Senate because of their strong conservative views and according to some even racist beliefs.

In addition, there are now reports, that some of the older conservative Supreme Court Justices may in fact now decide to step down.  It has been said, that some of them have been waiting for a Republican Senate to come into play so that when they retired they could be sure that an equally or more conservative Justice took their place.  Well, with the way the Republicans are totally in control of Washington, D.C., it is just a matter of time before we start seeing one, two, three or maybe even four Justices putting in for their retirement.  Should this take place, we could be left with a conservative leaning Supreme Court, not just for this year, or the next, but for a decade or two to come.

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