Current and Critical Legal Issues in Regulating Sexually Oriented Businesses

Abstract

Beginning in the 1990s and continuing into the next decade, regulation of sexually oriented businesses has become one of the most frequent subjects of appellate litigation in the land-use field, with as many as a dozen decisions from the federal circuit courts of appeal in a single year. In one sense, a topless cabaret is a very specific land use that most people suppose ought to be subject to regulation like other intrusive land uses, ranging from pawn shops to bars. Where the regulation focuses on the expressive activity rather than the land use, however, it raises significant questions under the First Amendment. In some cases, the clear focus of the community is on the land use itself and its impacts on the community; in such cases, the courts have little difficulty in sustaining reasonable ordinances. On the other hand, some ordinances in this field are clearly adopted in response to citizen complaints from people wanting to “close the porno shop,” or otherwise address issues related to the message, rather than the land use. Thus the subject is fertile for litigation, with significant constitutional issues and complexities affected both by the facts of the individual case and by the legislative history of the applicable ordinance.