Adam and Eve Jonesboro, LLC v. Perrin, No. 18-2818 (8th Cir. 2019)
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The Eighth Circuit affirmed the district court's judgment upholding the constitutionality of an Arkansas zoning law that prevents adult-oriented businesses from opening within 1,000 feet of schools and other places frequented by children. The court held that Adam and Eve, an adult toy superstore, has not engaged in speech and therefore cannot state a claim under the First Amendment. In this case, Adam and Eve disavowed any express conduct; cited no authority that selling sexually-oriented devices was speech; and expressly and repeatedly rejected that it was an adult-oriented business similar to those found in prior precedent, each of which engaged in protected speech.
The court also held that the zoning law was not unconstitutionally vague and does not violate equal protection. The court held that a plaintiff whose conduct is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice, and a substantial portion of Adam and Eve's business involves selling items the statute reaches. Finally, Adam and Eve failed to show that the Act treated it differently than similarly situated entities or lacked a rational basis.
Court Description: Kobes, Author, with Gruender and Stras, Circuit Judges] Civil case - Zoning. In its challenge to city's zoning law on adult-oriented businesses, plaintiff disavowed any expressive conduct and cannot state a claim under the First Amendment; the zoning act in question is not unconstitutionally vague as it is undisputed that a substantial portion of plaintiff's business involves selling items the statute reaches and a plaintiff whose conduct is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice; equal protection claim fails as plaintiff failed to show the zoning act treated it differently than similarly situated entities or lacks a rational basis.
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