Alabama House Bill 167 and Senate Bill 222


Summary

Alabama House Bill 167 and Senate Bill 222 would define a business as a “sexually oriented business” if it has “any business offering for sale, rent or the exhibit of items or services intended to provide sexual stimulation or sexual gratification to the customer.”

To the extent this applies to First Amendment-protected material, it means that any bookstore, video store or movie theater can be deemed an “adult” business and be subject to onerous restrictions on the business.

Presently, the definition of “sexually oriented business” is one that has, as its primary purpose, to offer such items or services. The rest of this legislation regulates massage businesses and is not a concern for Media Coalition members.

Status

H.B. 167 is in the House Committee on Boards, Agencies and Commissions. S.B. 222 is in the Senate Committee on Fiscal Responsibility and Economic Development.

Analysis

Chilling effect on mainstream retailers

Stores carry large amounts of mainstream material that include descriptions of nudity or sexual activity. The broad definition under this bill could include:

  • movies with nudity or frank discussion of sexual activity, such as Fast Times at Ridgemont High or American Pie,
  • romance novels and mainstream books such as Fifty Shades of Grey, and photography and health books such as Joy of Sex,
  • popular music by Prince or Van Halen that could be considered intended for “sexual stimulation.”

This legislation would have a serious chilling effect on mainstream retailers who carry this material. Many would have to drastically limit their inventory to avoid being classified as an “adult business,” given the negative connotations that go with the label. Alternatively, they risk losing customers unwilling to shop at an “adult business.”

Does not address secondary effects

The government has the power to regulate sexually oriented businesses to minimize the impact of the “secondary effects” of such businesses, but the Supreme Court has established limits on this power. The regulation:

  • must be designed to further an important or substantial government interest;
  • the governmental interest must be unrelated to the suppression of speech;
  • and the regulation must be narrowly tailored to further the government interest in preventing the unwanted secondary effects.

There is no way this legislation could meet the above test because it would deem almost any mainstream retailer of First Amendment-protected material to be a sexually oriented business. There is no “secondary effect” for carrying a single item with sexual content.

Typically, these laws intended to address the “secondary effects” of adult businesses define these business as those with sexually explicit material that has, as a primary business, the sale, loan or exhibition of sexual material. The other common formulation is if sexual material is a “significant and substantial” part of the stock and trade, floor space or revenue, with “significant and substantial” meaning 30 to 40 percent of wares or revenue.

History — H.B. 167

  • The bill was introduced [2] on February 9, 2016 and referred to the House Committee on Boards, Agencies and Commissions.
  • On February 22, 2016, Media Coalition submitted a legal memo [1] to the committee, explaining the constitutional issues with the bill.

History — S.B. 222

  • The bill was introduced [2] on February 11, 2016 and referred to the Senate Committee on Fiscal Responsibility and Economic Development.
  • On February 22, 2016, Media Coalition submitted a legal memo [1] to the committee, explaining the constitutional issues with the bill. The memo was submitted ahead of a scheduled hearing on the bill on February 17, 2016.

Last updated: Aug 5, 2016