In Fantasyland Video, Inc. v. County of San Diego, No. 05-56026 (Oct. 15, 2007), the Ninth Circuit upheld San Diego County’s “adult entertainment business” ordinance against a challenge under the California and US Constitutions. The issue was whether the ordinance’s restriction on operating hours was valid under the California Constitution, and its requirement that the doors to peep show booths remain open was valid under the First Amendment. In both instances, the Ninth Circuit held yes.
The court explained the framework for constitutional challenges to restrictions on adult-oriented businesses:
The constitutionality of the challenged provisions is governed by the framework announced in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), and refined in the plurality opinion of [City of Los Angeles v.] Alameda Books, 535 U.S. 425 [(2002)]. As recounted by Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003), the Renton inquiry proceeds in three steps: First, the ordinance cannot be a complete ban on the protected expression. Id. at 1159. Second, the ordinance must be content-neutral or, if content-based with respect to sexual and pornographic speech, its predominate concern must be the secondary effects of such speech in the community. Id. at 1159, 1161. Third, the regulation must pass intermediate scrutiny. It must serve a substantial government interest, be narrowly tailored to serve that interest, and allow for reasonable alternative avenues of communication. Id. at 1159.
The court held that the County’s ordinance passed all of these tests. Apparently, there are two adult entertainment businesses located in the unincorporated portions of San Diego County (the ordinance only applies in such areas), and both brought constitutional challenges to the ordinance. See slip op. at 13993 n.1. Last week, the Ninth Circuit decided Tollis Inc. v. County of San Diego, No. 05-56300 (Oct. 10, 2007), involving the other business, which I blogged about here.