East Brooks Books, Inc. v. Shelby County, Tenn.

588 F.3d 360, 2009 U.S. App. LEXIS 25806, 2009 WL 4061700
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 25, 2009
Docket08-5958
StatusPublished
Cited by9 cases

This text of 588 F.3d 360 (East Brooks Books, Inc. v. Shelby County, Tenn.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
East Brooks Books, Inc. v. Shelby County, Tenn., 588 F.3d 360, 2009 U.S. App. LEXIS 25806, 2009 WL 4061700 (6th Cir. 2009).

Opinions

OPINION

BOGGS, Circuit Judge.

This is the second of two related actions challenging Tennessee’s Adult-Oriented Establishment Registration Act of 1998, Tenn.Code Ann. § 7-51-1101 et seq., (the “Act” or “Tennessee Act”), a county-option law adopted by Shelby County, Tenn. Plaintiff-Appellant East Brooks Books, Inc. (“Plaintiff’) operates two bookstores that sell non-obscene sexually oriented material and restrict admission to adults only. On February 14, 2008, Plaintiff filed suit in the United States District Court for the Western District of Tennessee, naming Shelby County and the City of Memphis as defendants, seeking preliminary and permanent injunctions, as well as a declaratory judgment, on the grounds that the Act is unconstitutional on its face and as applied to Plaintiff. The Attorney General of Tennessee was granted leave to intervene to defend the constitutionality of the Act. Plaintiffs motion for a preliminary injunction was denied. Plaintiff appeals from the denial of its motion for a preliminary injunction. We now affirm the district court’s denial of the preliminary injunction.

I

The Tennessee Act is described in detail in the related action challenging its constitutionality, Entertainment Prod., Inc. v. Shelby County, Tenn., No. 08-5494, 588 F.3d 372, 2009 WL 4061704 (6th Cir.2009). This Plaintiff challenges the Tennessee Act on six grounds, some of which duplicate the substance of the claims made by the plaintiffs in Entertainment Productions. Here we address only those claims that were not resolved by our opinion in that case.

II

A

Plaintiffs first argument is that the definition of “adult bookstore” violates the Equal Protection Clause. The Tennessee Act regulates “adult-oriented establishments,” which include “adult bookstore[s]”:

“Adult bookstore” means a business that [1] offers, as its principal or predominate stock or trade, sexually oriented material, devices, or paraphernalia, whether determined by the total number of sexually oriented materials, devices or paraphernalia offered for sale or by the retail value of such materials, devices or paraphernalia, specified sexual activities, or any combination or form thereof, whether printed, filmed, recorded or live, and [2] that restricts or purports to restrict admission to adults or to any class of adults. The definition specifically includes items sexually oriented in nature, regardless of how labeled or sold, such as adult novelties, risqué gifts or marital aids;

Tenn.Code Ann. § 7-51-1102(1) (emphasis and numeration added). A bookstore will [364]*364be deemed “adult” under the Act only if, first, its “principal or predominate stock” consists of sexually oriented or adult materials, and second, if it “restricts or purports to restrict” its premises to adults. Plaintiff argues that the second criterion makes the Act under-inclusive, in violation of the Equal Protection Clause. While a bookstore with a predominantly adult stock that excludes minors from its premises is subject to the Act, an identical bookstore that does not so restrict admission — by, for example, setting up a “small front room” containing its insignificant stock of non-adult materials — is not subject to the Act. Plaintiff argues that distinguishing between these two types of bookstores constitutes unequal treatment without a rational basis. The rational basis for the distinction is absent, Plaintiff maintains, because both types of bookstores are equally likely to produce the adverse secondary effects targeted by the Act, and no rationale supports exempting from regulation adult bookstores that admit minors. Appellant’s Br. at 21-22.

Equal protection of the laws guaranteed by the Fourteenth Amendment “must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (citations omitted). The Supreme Court has stated that courts will “uphold the legislative classification,” if “a law neither burdens a fundamental right nor targets a suspect class, ... so long as it bears a rational relation to some legitimate end.” Ibid.

In this case, no “suspect class” is targeted. Nor does Plaintiff argue that a fundamental right associated with the freedom of expression is burdened.1 Plaintiff concedes that this classification needs only a rational basis to survive constitutional scrutiny. Appellant’s Br. at 21-22. “Under the rational basis standard, a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.’ ” Richland Bookmart v. Nichols, 278 F.3d 570, 576 (6th Cir.2002) (quoting Tuan Anh Nguyen v. INS, 533 U.S. 53, 77, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001)). “[A] law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer, 517 U.S. at 632, 116 S.Ct. 1620.

As an initial matter, we note that the bookstores allegedly advantaged by an exemption from the Act are probably few in number, if any such establishments exist at all. Tennessee law prohibits the display of adult material “anywhere minors are lawfully admitted.” Tenn.Code Ann. [365]*365§ 39-17-914; Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520 (Tenn.1993). Any bookstore “principally or predominantly” devoted to adult merchandise that wishes to avoid regulation as an “adult-oriented establishment” and sets up a small general-merchandise section, to which minors are admitted, runs a high risk of violating this law and incurring criminal penalties.2 It is unsurprising, therefore, that Plaintiff does not identify any actual bookstores in Shelby County that meet the first, but not the second, criterion of an “adult bookstore” under the Act.

Even if the kinds of bookstores Plaintiff describes exist, or, as Plaintiff suggests, will come into existence as operators “scramble to establish a small front room of some minor amount of non-adult materials” into which minors are admitted, Appellant’s Br. at 23, the “classification” does not lack a rational basis. “Th[e] [rational-basis] standard permits a court to hypothesize interests that might support legislative distinctions, whereas heightened scrutiny limits the realm of justification to demonstrable reality.” Nguyen, 533 U.S. at 77, 121 S.Ct. 2053. We can readily hypothesize the state’s interest in confining regulation to bookstores that meet both definitional criteria.

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588 F.3d 360, 2009 U.S. App. LEXIS 25806, 2009 WL 4061700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/east-brooks-books-inc-v-shelby-county-tenn-ca6-2009.