In a split opinion, the Sixth Circuit recently affirmed the constitutionality of Warren, Michigan’s restrictions on the geographic location of sexually oriented businesses. 

The plaintiff in Big Dipper Entertainment, LLC v. City of Warren, No. 09-2339 (6th Cir. Apr. 13, 2011), applied for a license to open a topless bar in the downtown area of Warren.  The City denied the application pursuant to its ordinance prohibiting sexually oriented businesses in its Downtown Development District.  Big Dipper sued, claiming that the ordinance violated its First Amendment rights and the City’s rejection of its license application acted as a prior restraint on its speech.

Judge Kethledge, speaking for the majority of the Court, found that the ordinance was content-neutral and subject to less scrutiny because it targeted the “secondary effects” of adult businesses, not speech.  Next, the Court held that the City satisfied its obligation to provide a reasonable opportunity to operate an adult business within the City, as demonstrated by empirical evidence considered by the lower court, and because Big Dipper waived any contrary argument when it failed to develop the argument in its briefing and only cited to its expert’s conclusions.

The Court rejected Big Dipper’s argument that the City imposed a prior restraint on its speech when it took 24 days, rather than 20 as prescribed by its rules, to reject Big Dipper’s license application, finding the 24-day period “reasonable” and dismissing the four-day delay as “immaterial.” 

Finally, the Court rejected Judge Cole’s argument, in his dissent, that the City’s licensing system was an impermissible prior restraint because it did not promptly provide for both court and administrative review.  Although the Court deemed the argument also waived by Big Dipper, it ultimately concluded that Big Dipper, not the City, had the obligation to seek judicial review of the application denial.