Do 'Off-Site' Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Results

Expressive activities that occur inside adult entertainment businesses are protected under the First Amendment. Ordinances aimed at regulating adult businesses must be motivated by a legitimate concern for the businesses' potential adverse secondary effects, including ambient noise, blight, and crime. To demonstrate that its motives are legitimate, the government must collect and weigh secondary effects evidence prior to enacting an ordinance. The courts have set a low evidentiary threshold for the government. The government can rely on secondary effects studies conducted in other places, for example, and on evidence that fails to satisfy arbitrary standards of rigor. The courts require that the government's evidence be relevant and reliable, however, and this requirement opens the door to Constitutional challenges. Recently, stores that sell sexually-explicit merchandise strictly for off-premise use have challenged the relevance of the government's secondary effects evidence to off-site adult businesses. The typical challenge argues (1) that off-site adult businesses are a distinct business model; (2) that no study has reported secondary effects for off-site adult businesses; and (3) that common sense dictates that off-site adult stores could not generate secondary effects. In 2002, agreeing with this argument, a 5th Circuit Court of Appeals panel struck down a San Antonio ordinance regulating off-site adult businesses. In the wake the 5th Circuit's Encore Videos decision, off-site adult businesses have used the same argument to challenge government ordinances throughout the U.S. In some cases, courts have agreed with the argument. In other cases, to avoid litigation, governments have agreed not to enforce regulations against off-site adult businesses. If the argument can be adapted to other adult business models, the Constitutionality of all adult business regulations are questioned. In this essay, we examine the legal, logical, and empirical bases of the argument used by off-site adult businesses to challenge the Constitutionality of ordinances. After describing the evolution of the U.S. Supreme Court's secondary effects doctrine, we apply the routine activity theory of crime to the off-site adult business model. Criminological theory predicts that all adult business models, including the off-site model, will have secondary effects. To test the theory, we report the results of a case study of an off-site adult business. Like other adult business models, this off-site store has large, significant crime-related secondary effect. Finally, we discuss the legal implications of the case study findings.