“Democracies need political debate more than they do topless bars in order to function.”
– Sixth Circuit Judge Raymond Kethledge, explaining in Big Dipper Entertainment v. City of Warren, that its fairly tough to uphold content-based restrictions on speech, but zoning regulations that limit the secondary effects of adult businesses — and thus limit the speech “conveyed by a topless bar” — will usually pass muster.
In a 2-1 decision, Kethledge, joined by Judge Alan Norris, rejected a topless bar operator’s claim that he had been unconstitutionally denied a permit to open a club inside the city of Warren’s Downtown Development Authority.
Kethledge said the city carried its burden to show that the zoning ordinance was designed to limit the secondary effects of adult businesses. The city did so by referring to 49 reports and studies on the matter.
The topless bar operator said that the city’s exclusionary zoning left too few other sites available for adult entertainment. But Kethledge noted that supply far outstripped demand: there were 27 conforming sites available and only one other topless bar application filed in the last five years.
In his dissent, Judge R. Guy Cole said the ordinance, because it imposed a prior restraint on speech, is presumed to be unconstitutional. And, he said, it was in fact unconstitutional because it did not provide for prompt judicial review after a permit denial.
The Michigan Lawyer 