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Court Upholds Limits on Tenn. Adult Businesses

(CN) - The 6th Circuit rejected a pair of lawsuits challenging a Tennessee law banning alcohol and nudity in adult establishments, and regulating how they do business.

An adult bookstore and a Memphis nightclub operator sued Shelby County, seeking to block enforcement of Tennessee's Adult-Oriented Establishment Registration Act of 1998. They claimed the law's language is unconstitutionally overbroad and would have a "chilling effect" on businesses that even dabbled with sexual material.

The Act was passed to address the alleged "deleterious secondary effects" associated with sexually oriented businesses, including increased crime, the spread of sexually transmitted diseases and reduced property values.

The law requires adult businesses to obtain a license and regulates erotic dancing by barring nudity and certain sexual activities and types of physical contact, and imposing a six-foot buffer zone between dancers and customers.

East Brooks Books operates two adult-only bookstores that sell non-obscene sexually oriented material. It claimed the Act violates the Equal Protection Clause, because the definition of "adult bookstores" excludes stores that carry adult-only material in small quantities.

The bookstore also took issue with the ban on alcohol in adult establishments, claiming it was overkill at bookstores. The ban might be justified at adult cabarets, given the "explosive combination of nude dancing and alcohol consumption," but bookstores hardly foster the same type of environment, East Brooks argued.

Nightclub operator Entertainment Productions said the law's sweeping definitions of "adult cabaret," "adult-oriented establishment" and "adult entertainment" regulated expression "not only within adult establishments, but also in a wide variety of venues with neither actual nor an alleged link to the adverse secondary effects attributed to adult expression."

Both plaintiffs lost their bids for injunctions in the district court, and the Cincinnati-based appeals court affirmed.

East Brooks failed to demonstrate a substantial likelihood of success on the merits, the court wrote.

It also shot down Entertainment Productions' overbroad argument, saying the law would clearly exempt mainstream artistic venues from the licensing and regulatory scheme.

"Because we find it improbable that any performances of serious artistic value qualifying as 'adult entertainment' would be staged in individualized booths, the number of ostensibly impermissible applications of the Act is negligible and does not rise to the level of real and substantial overbreadth," Judge Danny Boggs wrote.

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