The appeal was filed by Steele Retail 37, doing business as Lion’s Den, which had opened an adult retail store in the town of Steele this summer.
The store, part of the popular Lion’s Den chain with locations throughout the Midwest, had wanted to put up a billboard that said, “Lion’s Den Superstore Food Fuel Adult Exit Now,” but never put up the sign for fear that it would be prosecuted under the law.
Lion’s Den contended that the law is overly broad and restricts adult businesses from advertising not only adult items but nonadult products as well.
In his denial of the appeal, federal Judge Gary Fenner sited the highly contested “secondary effects” argument often used by anti-adult advocates to justify special restrictions on sexually oriented material. Fenner also rejected the plaintiff’s claim that the law is overly broad, pointing out that it is very specific about what is prohibited and does not prevent adult businesses from advertising nonadult items such as food, gas and cigarettes.
“When read in its entirety, and in light of the unequivocal intent of the legislature to mitigate the adverse secondary effects associated with the sexually oriented aspects of sexually oriented businesses, [the statute] does not prohibit sexually oriented businesses from advertising non-adult items,” Fenner wrote.
The law applies to any business that devotes more than 10 percent of its display space and inventory to sexually oriented merchandise. Violate carry a punishment of up to 30 days in jail.
Fenner’s decision marks the second time a challenge to the law has been rejected. In August, Passions Video attempted to have the law overturned on constitutional grounds, but Fenner said the law was a constitutionally permissible regulation of commercial speech.
Attorneys defending the state said that a provision in the law makes it clear that the statute focuses only the adverse effects of sexually oriented advertising. Specifically, the provision says the law is designed “to mitigate the adverse secondary effects of sexually oriented businesses, to improve traffic safety, to limit harm to minors, and to reduce prostitution, crime, juvenile delinquency, deterioration in property values, and lethargy in neighborhood improvement efforts.”
States attorneys told the court they have no intention of prosecute adult businesses for advertising nonadult merchandise.
