The 9th Circuit has reversed a lower court’s ruling that a Los Angeles ordinance prohibiting combined adult retail and arcade establishments violated the First Amendment.

The court of appeals said the bookstore and arcade that brought the suit did not offer enough evidence to show that the city’s ordinance was unconstitutional.

The suit was filed by Alameda Books Inc., an adult bookstore that contained an arcade where customers could pay to view adult-themed films.  Alameda Books offered declarations from its vice president and from an adult arcade installer.

The District Court found that the declarations suggested that the city's intent in passing the ordinances was to reduce criminal activity in the vicinity of adult entertainment businesses by closing arcades and impermissibly reducing speech in the same proportion.

The 9th Circuit held that to successfully “cast doubt” on a municipality's rationale for a dispersal ordinance relating to adult businesses, a plaintiff must offer “actual and convincing” evidence. The claim must be that the ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced.

A plaintiff must do more than point to a municipality's lack of empirical evidence or challenge the methodology of the municipality's evidence — it must convincingly discredit the foundation upon which the government's justification rests.

The extent to which the declarations of Alameda Books’ witnesses were “convincing” was diminished by their obvious self-interest: one was the vice-president of a party to the litigation, and the other ran a company that installed adult arcades. The judgment in Alameda Bookstores’ favor was not indicated.

Alameda Books Inc. v. City of Los Angeles, No. 09-55367 (9th Cir. Jan. 28, 2011)

(Reporting by Ronald Owens, Principal Attorney Editor, San Francisco.)