Did the Seventh Circuit's 2014 ruling against Indianapolis's adult-bookstore hours rule mean Tennessee's similar restrictions are now unconstitutional?

Plain-English summary

Tenn. Code Ann. § 7-51-1402, part of Tennessee's Adult-Oriented Establishment Act, restricts the hours adult businesses may operate. In 2014, the Seventh Circuit's decision in Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir. 2014), reversed a district court ruling that had upheld an Indianapolis hours-of-operation ordinance for adult bookstores, finding the city had not adequately demonstrated the ordinance addressed deleterious secondary effects.

The AG was asked whether Annex Books undermines Tennessee's statute. The AG concluded no. The Sixth Circuit, which controls in Tennessee, decided Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998), upholding Tennessee's Adult-Oriented Establishment Act under intermediate scrutiny. The Sixth Circuit found that reducing crime, open sex, sex solicitation, and preserving neighborhood character around adult establishments is a substantial government interest, and the Tennessee Legislature reasonably relied on the experiences of other jurisdictions in setting hours restrictions. The Sixth Circuit has reaffirmed Richland Bookmart repeatedly (84 Video/Newsstand, Sensations, Deja Vu of Cincinnati), and other circuits (Ninth Circuit's Center for Fair Public Policy) have upheld similar restrictions. Annex Books is a Seventh Circuit decision and does not control Tennessee law.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why does the Sixth Circuit's decision control over the Seventh Circuit's?
A: Tennessee sits in the Sixth Circuit. A federal court of appeals binds only the district courts and state-court-federal-question matters within its geographic circuit. Indianapolis is in the Seventh Circuit, so Annex Books binds Indiana, Illinois, and Wisconsin but not Tennessee. The Sixth Circuit's decision in Richland Bookmart binds Tennessee on this First Amendment question.

Q: What's the secondary-effects doctrine?
A: Under cases like City of Renton v. Playtime Theatres, governments can regulate adult establishments under intermediate scrutiny if the regulation is aimed at the secondary effects of the businesses (crime, blight, declining property values) rather than at the speech itself. Time, place, and manner restrictions on adult businesses are evaluated under this framework.

Q: What did Annex Books actually hold?
A: The Seventh Circuit held that Indianapolis had failed to demonstrate the reasonableness of its hours-of-operation restrictions for adult bookstores. The city had relied on a single justification (fewer armed robberies at or near adult bookstores) that the appellate court found insufficient. Tennessee's record before the Sixth Circuit in Richland Bookmart relied on the broader experiences of other jurisdictions, which the Sixth Circuit accepted as adequate.

Q: Could a future U.S. Supreme Court decision change this?
A: Yes. The Supreme Court could resolve the circuit split between the Sixth Circuit (and other circuits upholding similar restrictions) and the Seventh Circuit. Until then, the controlling law in each circuit governs.

Background and statutory framework

Tennessee's Adult-Oriented Establishment Act, Tenn. Code Ann. §§ 7-51-1401 to -1406, regulates the operation of adult-oriented establishments at the state level, with provisions including hours of operation. The Sixth Circuit upheld the Act's hours-of-operation provisions in 1998 under intermediate scrutiny applied through the secondary-effects doctrine, and that decision has remained controlling in Tennessee.

The opinion is essentially a circuit-split assessment. Sixth Circuit law governs in Tennessee. The Seventh Circuit's decision in Annex Books, while notable, applies only within the Seventh Circuit and does not displace Sixth Circuit precedent. Until the U.S. Supreme Court resolves the conflict or until the Sixth Circuit revisits Richland Bookmart, Tennessee's hours-of-operation restrictions remain enforceable.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 7-51-1401 to -1406 (Adult-Oriented Establishment Act)
• Tenn. Code Ann. § 7-51-1402 (hours of operation)

Cases:

• Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998) (federal court of appeals; controlling Sixth Circuit precedent)
• Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir. 2014) (federal court of appeals; Seventh Circuit, not controlling in Tennessee)
• 84 Video/Newsstand, Inc. v. Sartini, 455 Fed. Appx. 541 (6th Cir. 2011) (federal court of appeals)
• Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008) (federal court of appeals)
• Deja Vu of Cincinnati, LLC v. Union Twp. Bd. of Trustees, 411 F.3d 777 (6th Cir. 2005) (federal court of appeals, en banc)
• Center For Fair Public Policy v. Maricopa Cnty., 366 F.3d 1153 (9th Cir. 2003) (federal court of appeals)
• Fantasyland Video, Inc. v. Cnty. of San Diego, 373 F. Supp. 2d 1094 (S.D. Cal. 2005) (federal district court)

Subject

Opinion No. 14-92, Validity of Regulation of Hours of Operation of Adult-Oriented Establishments, October 24, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-092.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
October 24, 2014
Opinion No. 14-92
Validity of Regulation of Hours of Operation of Adult-Oriented Establishments

QUESTION

Are the hours-of-operation restrictions for adult-oriented establishments set forth in Tenn. Code Ann. § 7-51-1402 constitutionally valid, in light of the decision in Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir. 2014)?

OPINION

Yes. Current precedent in the United States Court of Appeals for the Sixth Circuit upholds the constitutionality of Tennessee's hours-of-operation restrictions for adult-oriented establishments.

ANALYSIS

The existing hours-of-operation restrictions for adult-oriented establishments set forth in Tenn. Code Ann. § 7-51-1402 have been upheld as constitutionally valid. See Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998), cert. denied, 537 U.S. 823 (2002). Applying the intermediate-scrutiny test to Tennessee's Adult-Oriented Establishment Act, Tenn. Code Ann. §§ 7-51-1401 to -1406, the United States Court of Appeals for the Sixth Circuit held that:

reducing crime, open sex and solicitation of sex and preserving the aesthetic and commercial character of the neighborhood surrounding adult establishments is a "substantial government interest." The Tennessee Legislature reasonably relied on the experiences of other jurisdictions in restricting the hours of operation.

Richland Bookmart, 137 F.3d at 440.

The Sixth Circuit has reaffirmed and applied the rationale in Richland Bookmart in upholding other hours-of-operation restrictions regarding adult-oriented establishments. See, e.g., 84 Video/Newsstand, Inc. v. Sartini, 455 Fed. Appx. 541, 562-63 (6th Cir. 2011), cert. denied, 132 S.Ct. 1637 (2012); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 294, 298-99 (6th Cir. 2008); Deja Vu of Cincinnati, LLC v. Union Twp. Bd. of Trustees, 411 F.3d 777 (6th Cir. 2005) (en banc), cert. denied, 546 U.S. 1089 (2006). Other courts have likewise upheld the constitutionality of hours-of-operation restrictions for adult-oriented establishments. See, e.g., Center For Fair Public Policy v. Maricopa Cnty., 366 F.3d 1153 (9th Cir. 2003), cert. denied, 541 U.S. 973 (2004); Fantasyland Video, Inc. v. Cnty. of San Diego, 373 F. Supp. 2d 1094, 1106-09 (S.D. Calif. 2005), aff'd, 505 F.3d 996, 1001-02 (9th Cir. 2007).

The holdings in these cases stand in stark contrast to the decision of the United States Court of Appeals for the Seventh Circuit in Annex Books, Inc. v. City of Indianapolis, 740 F.3d 1136 (7th Cir.), cert. denied (U.S. Oct. 6, 2014) (No. 13-1441), where the court determined that the City of Indianapolis had failed to demonstrate the reasonableness of its hours-of-operation restrictions for adult bookstores as a means of addressing deleterious secondary effects. The court reversed the judgment of the district court, which had found after trial that the city's single justification of fewer armed robberies at or near adult bookstores was adequate to support the ordinance. Id. at 1137-38. The Seventh Circuit decision in Annex Books, however, is not controlling in Tennessee, and it does not change Sixth Circuit law, which does control.

HERBERT H. SLATERY III
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

STEVEN A. HART
Special Counsel

Requested by:
The Honorable Reginald Tate
State Senator
320 War Memorial Building
Nashville, Tennessee 37243