American Men Mourn: Topless Bar Restrictions Are Legal

| by

A Michigan city had the right to ban topless bars from residential areas and downtown, the 6th Circuit ruled, finding that the city's restrictions on adult business locations are not unconstitutional.

Big Dipper Entertainment sued the city of Warren after its council prohibited sexually oriented businesses from locations within 750 feet of residential districts, planned unit developments or the downtown area.

Big Dipper applied for a license to open a topless bar in 2006. The city was required to rule within 20 days, but the clerk rejected the application after 24 days.

The company sued in federal court, calling the city's rejection a prior restraint on protected expression and a violation of the First Amendment.

The District Court ruled in the city's favor, and the 6th Circuit upheld the decision on appeal, ruling that the city has the right to avoid the secondary effects of sexually oriented businesses, for which it had obtained 49 studies.

Big Dipper had 27 possible sites on which it could locate its business, and only two other applications were submitted over a five-year period, Judge Raymond Kethledge wrote for a majority of the Cincinnati-based federal appeals court.

"A supply of sites more than 13 times greater than the five-year demand is more than ample for constitutional purposes," Kethledge wrote.

The judges also found that Big Dipper's constitutional rights were not violated by the city's untimely ruling on its application.

"That the city took 24 days rather than 20 to act on Big Dipper's application is immaterial for constitutional purposes," Kethledge wrote.

In a dissenting opinion, Judge R. Guy Cole Jr. wrote that while the majority focused on the city's geographic description, "the beaches of Normandy lie elsewhere: the prior restraint analysis."

Cole wrote that the city law "constitutes prior restraint and is presumptively unconstitutional.

"The license denial letter to Big Dipper did not indicate the specific reason for the denial - stating only that the application was 'defective and not the proper application' - and did not apprise Big Dipper of the ability to appeal the denial," Cole wrote. 

Courthouse News