No First Amendment Right to Booze in Adult Bookstores in TN

By Tanya Roth, Esq. on December 10, 2009 | Last updated on March 21, 2019

Down in Tennessee, its business as usual for adult bookstore owners; except for the ones who had their hearts set on encouraging patrons to exercise their First Amendment rights to view adult entertainment while sipping cocktails. Thanks to the 6th Circuit Court of Appeals, that just ain't gonna happen. To try to prevent this Orwellian turn of events, the owners of East Brooks Books sued Shelby County for said rights. In their suit, East Brooks Books made several arguments based on the First Amendment. Here is the highlight reel.

In 1998, the Tennessee Adult-Oriented Establishment Registration Act allowed counties the option to ban alcohol in adult bookstores. These establishments are carefully defined by the law as ones primarily offering adult materials and which prohibit minors from entering the premises. Plaintiffs first argued that the classification of these establishments was unconstitutional because it did not include the kind of store that could have a tiny front section of regular old books (like say, Lady Chatterley's Lover) and then an inferno of a back area brimming with adult entertainment. These establishments would abound because they could evade the law's dragnet, and thus, they argued, the law would be applied in a way that would violate the Equal Protection clause of the 14th Amendment.

The Court scoffed, politely. Since it is a criminal violation to allow the display of adult material "anywhere minors are lawfully admitted," the Court felt that such combination establishments would be few and far between. Most store owners would be likely to get busted for providing adult material to minors and it would not be worth running this risk just to sell a few drinks. Moving on.

The plaintiff's next argument is more creative. The plaintiff claimed its patrons' First Amendment rights would be unconstitutionally inhibited by the failure of the law to allow patrons to booze and browse at the same time. Unlike the activities in adult cabarets, tippling while shopping for movies, books and what the court coyly terms, "marital aids," just would not reproduce the "explosive effect" of drinks and live adult entertainment. Therefore, they argued, it should not be prohibited in the relatively sedate adult bookstores.

The Court disagreed.They found that "the deprivation of alcohol does not prevent a bookstore... from offering sexually explicit materials for sale, nor does it prevent customers from enjoying all the merchandise such businesses have to offer.

Result: the Court held that in Tennessee you can have a drink. You can peruse adult oriented materials. You just can't do both at the same time.

For that, you'll have to go to Vegas.

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