Wisconsin: County May Regulate Viewing Booths

US court affirms that a county has the right to regulate viewing booths for reasons of health…

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94-C-1118–John W. Reynolds, Judge.


Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge. Plaintiffs Satellite News and Video, Inc. (“Satellite”) and Phil Matney brought suit in district court, seeking to have a Kenosha County, Wisconsin “open-booth” ordinance declared unconstitutional and to obtain an injunction prohibiting its enforcement. The ordinance requires that movie-viewing booths at “adult entertainment” establishments, such as the one owned by Satellite and patronized by Matney, be totally accessible from a public area and have at least one side totally open to a lighted public aisle. The district court granted summary judgment in favor of Kenosha County (“County”) and the plaintiffs appeal. We affirm….

The Board considered evidence from the sheriff’s departments in Kenosha County and other communities in reaching its conclusion that activity occurring in booths at adult oriented establishments leads to unhealthy and unsanitary conditions and to the transmission of AIDS and other sexually transmitted and communicable diseases.

…we concluded that “[p]lainly, for First Amendment purposes, an open booth is the equivalent to a closed booth, so far as viewing materials is concerned.”

…Every court that has addressed a privacy claim in this situation has concluded that patrons of public adult entertainment establishments do not have a general privacy right, whether within the penumbra of the First, Fourth, or Fourteenth Amendments, to watch sexually explicit movies in seclusion and anonymity.

…The Constitution does not afford a right to totally unrestricted, unchilled speech. Rather, the First Amendment affords the right to receive and disseminate protected speech, subject to valid time, place, and manner restrictions.

…we find that Kenosha County’s open booth regulation is a valid time, place, and manner restriction, and as such does not violate the First Amendment.

Read the complete decision.

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