Nude Dancing Plaintiffs Concede Away Their Preliminary Injunction Case

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit this week denied a preliminary injunction to owners of a would-be nude-dancing establishment in Angola, Indiana, because the owners stipulated to the city's secondary-effects justification for its zoning ordinance that blocked development of the establishment.

The plaintiffs' surprising concession means that the plaintiffs could not show a "substantial likelihood of success" on the merits of their First Amendment claim, and that they therefore could not get an injunction ordering the city to grant a license to develop the business.

The case arose when the plaintiffs proceeded with developing a site for an adult entertainment business, the only one in Angola, Indiana. The city reacted by changing its zoning law in a way that would bar the plaintiffs from completing the project and starting the business. In particular, the city adopted a zoning rule that required sexually oriented businesses to be located at least 750 feet from every residence--a standard that the plaintiffs could not meet. The city justified the new rule based on the "secondary effects" of adult entertainment businesses, including crime, prostitution, disease, public indecency, and the like.

The city and plaintiffs filed motions for partial summary judgment, and the plaintiffs filed for a preliminary injunction. Oddly, the plaintiffs stipulated to the city's secondary-effects justification at the hearing (even as they said they'd challenge it later):

We'll stipulate that in our preliminary injunction motion we are not challenging here the factual predicate for the ordinances. We do want to challenge that. That was part of the amended complaint that was struck. We've asked for discovery on that. We haven't been able to take discovery. So we want to challenge that, at some point, but we will stipulate so that [Angola's counsel] is not concerned that we would go up to the Court of Appeals and make the argument that they . . . didn't have a requisite basis at least for this point to enact these ordinances. They're relying on that. That's fine. We're not challenging that here.

The district court denied the plaintiffs' motion, and the Seventh Circuit affirmed, because the stipulation meant that the plaintiffs couldn't show a likelihood of success on the merits. (Under Renton the city can zone adult entertainment establishments based on their secondary effects.)

Still, this ruling doesn't end the case. The district has yet to decide whether the city left open an alternative avenues for the communication. (If not, the plaintiffs could still win on the merits.) So the case will go back to the district court on this question. In the meantime, the Seventh Circuit's ruling means that there won't be adult entertainment in Angola, unless and until the plaintiffs win on the merits.