A curated set of published decisions with brief notes on legal significance and holding involving firm attorneys, including prior incarnations of the firm.
A. UNITED STATES SUPREME COURT
Young v. American Mini Theatres,
427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)
First adult zoning case in the nation.
Brockett v. Spokane Arcades, Inc.
472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)
Landmark ruling narrowing definition of “obscene” by rejecting argument that a “prurient interest” could include a mere lustful interest in sex. Instead, it must incite a “shameful or morbid” interest in “sex, nudity or excretion” and must be measured by contemporary community standards. This essentially ended almost all obscenity prosecutions of mainstream sexually explicit materials.
Fort Wayne Books, Inc. v. Indiana
489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989)
Ruled that a pre-trial state RICO seizure of allegedly obscene materials based on a judge’s finding of probable obscenity is unlawful unless there is a pre-seizure adversary hearing which examines the obscenity or not of each of the materials to be seized.
FW/PBS, Inc. v. City of Dallas
493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)
Landmark decision holding that Dallas’ adult business permit requirement was a facially invalid prior restraint because it lacked certain procedural safeguards to protect it from being used as a tool of censorship by delay. Any adult business permit requirement must expressly provide that the license will issue within a specified reasonably brief time period and further held that requiring the Chief of Police to issue the police permit within a specified and brief time period was inadequate where the ordinance prohibited the Chief from granting the permit until it was approved by other agencies, and there were no time limits for those other agencies to approve the permit application.
City of Los Angeles v. Alameda Books, Inc.
535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002)
Adult zoning case analyzing constitutionality of an ordinance prohibiting two defined adult “businesses” from operating in the same business space, e.g., an adult picture arcade inside an adult bookstore. Remanded for application of its standards. Majority of Court agreed that adult zoning ordinances were not content neutral, rejecting language in City of Renton case to that effect but disagreed on exact standard to apply on remand. Justice Kennedy’s concurrence was found controlling on remand as the narrowest opinion supporting the judgment and he required a proportionality test to be applied on remand, where the adverse effect on speech must be minimal and any likely decrease in adverse secondary effects would be significant.
B. UNITED STATES COURTS OF APPEALS
U.S. v. Heyman
562 F.2d 316 (4th Cir. 1977)
Federal obscenity prosecution reversed because jury was allowed to decide the question of whether the materials had serious literary, artistic, political or scientific value based on their perception of contemporary community standards. Those standards are only to be applied to the first two elements of the obscenity test, i.e., whether it appeals to a “prurient interest” and whether it contains “patently offensive” depictions of sexual acts, nudity or excretion.
U.S. v. Peterman
744 F.2d 716 (10th Cir 1984)
Defendant was entitled to a good faith defense.
Tollis, Inc. v. The County of San Bernardino
827 F.2d 1329 (9th Cir. 1987)
Court enjoined enforcement of a County adult zoning ordinance as overbroad, holding it was facially unconstitutional because it had the potential to apply to a theater which exhibited as little as one sexually oriented film and there was no evidence that such minimal use would have adverse secondary effects on the community.
United States v. United States District Court (Kantor)
858 F.2d 534 (9th Cir. 1988)
Traci Lords child pornography case. Court held that defendants in a federal child pornography prosecution did not have strict liability even if the depicted actress was under 18. Instead, defendants were entitled to prove, by clear and convincing evidence, that they did not know, and could not reasonably have learned, that the actress was under 18 years of age.
U.S. v. PHE
965 F.2d 848 (10th Cir 1992)
Justice Department use of multi-jurisdictional prosecutions against Adam and Eve was malicious.
Topanga Press, Inc. v. City of Los Angeles
989 F.2d 1524 (9th Cir. 1993)
Leading Los Angeles adult zoning case. Affirmed the grant of a preliminary injunction against enforcement of Los Angeles’ adult zoning ordinance and articulated standards to be applied at trial.
Center For Fair Public Policy v. Maricopa County
336 F.3d. 1153 (9th Cir. 2003)
Recognized that Justice Kennedy’s proportionality test in City of Los Angeles v. Alameda Books applies to adult zoning laws but held it does not apply to adult hours of operation ordinances.
C. UNITED STATES DISTRICT COURTS
Cornflower Entertainment, Inc. v. Salt Lake City
485 F.Supp. 777 (D.Ut. 1980)
Held that municipal adult business licensing law is an unconstitutional prior restraint to extent it permits revocation of license for prior obscenity violations. Court also rejected City’s argument that court should abstain and let the state courts decide the constitutional question.
Dease v. Anaheim
826 F.Supp. 336 (C.D.Cal. 1993)
Court enjoins enforcement of Anaheim’s conditional use permit requirement for adult cabaret as a facially invalid prior restraint of expression because it allowed the City unfettered discretion to establish such conditions “as it may determine to be reasonably necessary to safeguard and protect the public health and safety and promote the general welfare.”
3570 East Foothill Blvd., Inc. v. City of Pasadena
912 F.Supp. 1268 (C.D.Cal. 1996);
Court strikes down CUP and live entertainment permit requirements for adult businesses as facially unconstitutional for two independent reasons: (1) issuance of the permits was discretionary; and (2) there were no time limits for ruling on the permit applications.
CR of Rialto, Inc. v. City of Rialto (Rialto I)
975 F.Supp. 1254 (C.D.Cal. 1997);
Court struck down an ordinance imposing a moratorium on new adult business permit applications and also struck down a conditional development permit requirement for adult businesses.
CR of Rialto Inc. v. City of Rialto (Rialto II)
964 F.Supp. 1401 (C.D.Cal. 1997)
Court found adult zoning scheme void in its entirety for allowing no alternative sites after rejecting argument that it could be saved by severing one of two independently valid component zoning provisions.
Topanga Press, Inc. v. City of Los Angeles
409 F.Supp.2d 1188 (C.D.Cal. 2005)
Court rejects City’s motion to vacate a prior consent decree injunction against the City’s enforcement of its adult business permit requirements, rejecting City’s argument that it had complied with all the requirements in the consent decree or, alternatively, that some of the prior requirements are no longer constitutionally required.
D. CALIFORNIA COURTS OF APPEAL
Osmond v. EWAP, Inc.
153 Cal.App.3d 842, 200 Cal.Rptr. 674 (1984)
Former childhood star who portrayed Eddie Haskell on Leave it to Beaver TV series sued adult bookstore owner for defamation for selling a video tape which had labelling mis-stating that the star of the film, John Holmes, had played Eddie Haskell in that show. Court held that case should be dismissed because proof of “actual malice” was required and there was no evidence that the defendant, a distributor and not the author of the falsehood, knew or should have known that the statement was inaccurate.
People v. Library One, Inc.
229 Cal.App.3d 973, 280 Cal.Rptr. 400 (1991)
Court holds that Los Angeles County’s business license and conditional use permit requirements for adult businesses were facially unconstitutional because the code failed to provide any specified time within which an application for a business license or a conditional use permit must be granted or denied and thus constituted an invalid prior restraint. To the extent that violation of various restrictions on these businesses were misdemeanors, those provisions were unenforceable because they imposed restrictions only on the “licensee” and the license requirement had been found facially unconstitutional. Court overruled the earlier decision of the Superior Court Appellate Department in People v. Nadeau which had upheld the ordinance scheme against a similar challenge.
E. STATE HIGH COURT (OUTSIDE OF CALIFORNIA)
State v. Brickey, 714 P. 2d 644 (1986) Utah Supreme Court.
A case dismissed at Preliminary Hearing for failure to meet probable cause requirements may not be refiled unless state can show new evidence not available at time of dismissal.