Tenn.: Second Video Store Joins 1st Amendment Countersuit

Tod Hunter
MURFREESBORO, Tenn. — Two stores targeted by city officials for violating Murfreesboro's restrictions on "adults-only bookstores" are suing the city for violating their 1st Amendment rights.

In February, the city sued Raymond Vincent Bohannon, owner of adult store 21 Up Movies & More, for failing to comply with a new zoning ordinance passed that restricts adult bookstores to areas zoned "heavy industrial." The new ordinance defines adult-oriented businesses as having "more than 20 percent of the floor area, or more than 20 percent of the inventory by either units or value, or more than 20 percent of revenues, or a total inventory of more than 200 units" of books, magazines, films, DVDs or other merchandise "depicting, describing or relating to nudity, sexual conduct, sexual excitement or sadomasochistic abuse."

Bohannon filed a countersuit in Rutherford County Circuit Court on May 1, claiming the law is unconstitutional — and that even if it were not, his store should be grandfathered in because it was opened before the city changed its law. The countersuit also claims the law is too vague and restricts free speech.

Video Culture, a locally owned independent video store that has operated in the city for 12 years, joined the lawsuit on May 30. Video Culture was declared an "adults-only bookstore" after a Jan. 19 inspection showed the store to have more than 200 adult-themed videos, although the adult material makes up only 2 percent of the store's inventory. The store is in an area zoned "commercial local."

Shelley Justiss, Video Culture owner, said she was shocked that her business was being referred to as an "adults-only bookstore."

Both 21 Up Movies & More and Video Culture remain open, and no court date has yet been set in the case.

The countersuit states that the city's attempt to define an "adults-only bookstore" was underresearched and does not show that defining an "adults-only bookstore" as one with 200 or more units of sexually explicit material has any negative secondary effects.

The countersuit also states that the city’s new guidelines to define adult businesses are “arbitrary, unduly restrictive and not reasonably related to any legitimate purpose that would permit a municipality to classify or discriminate against a business based upon the content of movies rented or sold for viewing in the private homes of adult citizens.”

In 2005, Bohannon and his brother won a similar suit before the Tennessee Supreme Court after the city of Knoxville shut down their store, Fantasy Video. The U.S Supreme Court later declined to hear an appeal in that case.

The Tennessee court ruled that Knoxville's law restricting adult bookstores was too vague and it violated freedom of speech as guaranteed by both the U.S. and Tennessee constitutions.

Before Murfreesboro passed its law defining an adults-only business last September, the city's law contained language identical to the Knoxville law which was struck down by the Tennessee court.

Representatives of 21 Up and Video Culture were unavailable at press time.