Baltimore County Council Bill 50-10 would define a business as an “adult business” if as little as 15 percent of display space, usable floor area or retail sales, lease or rental is derived from material that describes or depicts sexual activities.
“Sexual activities” is defined as nudity, partial nudity, sexual conduct, sexual excitement or sadomasochistic abuse. If a business is deemed to be an “adult business,” it is limited in where it can be located and restricted in how it may display its content.
The bill was approved by the Baltimore County Council in 2010.
The government has the power to regulate the “secondary effects” of sexually oriented 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.
It is questionable if Bill 50-10 would meet this test. Typically, local ordinances designed to limit “secondary effects” define adult bookstores or video stores as those where sexually explicit visual material is a significant and substantial part of the stock and trade, floor space or revenue. Significant and substantial part of the stock and trade has generally been defined by ordinances or interpreted by courts to mean 30 to 40 percent of wares or revenue.
Stores carry large amounts of mainstream material that include descriptions of nudity or sexual activity. The broad definition in the bill could include films such as Anchorman, Fast Times at Ridgemont High or American Pie that include images of nudity and frank discussion of sexual activity. Descriptions of “sexual activity” are common in most romance novels and mainstream novels by authors such as Tom Wolfe and Philip Roth, and many photography and health books include nude images. Popular music by artists such as Prince and Van Halen frequently describes “sexual activity,” too. This creates a difficult situation for mainstream retailers.
Given the broad amount of material and low threshold, there is little reason to believe these restrictions on such businesses will prevent the unwanted secondary effects that the County Council is seeking to restrict. Conversely, the bill would have a serious chilling effect on many mainstream retailers. It is likely that some, if not many, mainstream bookstores, video stores and music stores could be at risk of being deemed a sexually oriented business. Many would have to drastically limit their inventory rather than be classified as an “adult business” to avoid the negative connotations that go with the label. Otherwise, they risk losing customers unwilling to shop at an “adult business.”