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Over the past two decades, there has been a marked expansion in legal challenges to local land use regulations claiming violations of the free speech clause of the First Amendment to the United States Constitution. First Amendment claims can arise whenever government enacts or enforces zoning or other regulations that deal with uses such as billboards or adult entertainment businesses. This article discusses why this litigation is taking place, provides an overview of First Amendment law, and offers local officials some guidelines to help avoid potential legal challenges. …

Adult Entertainment Zoning & Licensing

The Supreme Court has ruled that local governments may single-out adult entertainment businesses for special regulatory treatment in the form of locational restrictions if government can show a substantial public interest in regulating such businesses unrelated to the suppression of speech and if the regulations allow for a reasonable number of alternative locations.

Local governments may bar such businesses from residential areas and subject them to “distancing” requirements from churches, schools, playgrounds, and each other. However, such businesses must be allowed to open and operate at locations that are “available” for such a use; i.e., locations that are zoned to permit such uses and that are serviced by roads and utilities.

Adult entertainment zoning ordinances must also be drafted with meticulous attention to the definitions used to determine what constitutes an adult entertainment business and the legislative record must reflect that the ordinance was enacted to address the negative “secondary effects” (most typically, increased crime and lowered property values) associated with such businesses, rather than to censor or prohibit the entertainment itself. …

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