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Dr. John’s Case a Test of Free Speech; 10th Circuit Court to Hear Arguments Wednesday

Utah- Doctor John’s Lingerie Boutique on Wednesday will take on the city of Roy in a First Amendment case that will decide whether the city can regulate sexual speech.

The case, almost a decade in the making, hinges on whether businesses such as Doctor John’s increase crime and blight and decrease neighboring property values.

If Roy succeeds, municipalities’ freedom to regulate sexual speech would be increased by allowing elected officials to decide if something is likely to harm the community. If the sex shop wins, municipalities’ power to regulate the shops would be restricted, because elected officials would have to prove harm to the community using more specific scientific methods, according to briefs filed with the court of appeals.

Attorneys will make oral arguments Wednesday before judges from the U.S. 10th Circuit Court of Appeals, who will be meeting in Salt Lake City at the University of Utah law school.

John Coil, a managing partner in Doctor John’s Lingerie Boutique stores, said in an interview that the only negative effect of adult boutiques in Utah is harm to the religious, male oppression of women and their bodies.

“For harm to community — here’s the thing: That’s the very same argument they use in Muslim countries when a young girl uses her birth canal for something the men don’t want her to use it for,” the Texas businessman said. “In the United States, in our society, women can use their bodies for whatever they want.”

Coil’s opponents disagree, saying evidence against sex devices and erotica is overwhelming. John Harmer, president of the national anti-smut group Lighted Candle, said people can get addicted to “eroto-toxins” that work like drugs to drag their victims into addiction.

Serious problems with hard-core and child pornography addiction begin with addiction to mainstream pornography, Harmer contends in a newsletter for the group.

Doctor John’s moved into Roy the day after Valentine’s Day in 2001. The City Council responded by enacting an ordinance requiring all sexually oriented businesses to take out special business licenses. The ordinance requires all employees of such businesses to be licensed and undergo background checks. The measure also restricts business hours.

The ordinance defines adult bookstores as those in which a “significant or substantial portion” of its sales revolve around “specified sexual activities,” or “sadomasochistic use or abuse of (the actors) or others.”

Doctor John’s sued the city in federal court, arguing that Roy was illegally suppressing its freedom of speech. The city countersued, but the store was allowed to stay open and now operates 24 hours a day selling sex toys, erotic videos, lotions, lingerie and gag gifts, among other things.

The store is open only to adults — the store checks the identification of customers when they enter. But the city believes more regulation is needed.
Coil said that even if he loses in court, the store will remain open.

Roy city attorney Andy Blackburn said the dispute comes down to whether Doctor John’s should be paying for a sexually oriented business license or getting a regular business license. “Some of the secondary effects could be obscenity, distribution of material harmful to minors and child pornography,” he said.

Blackburn’s assumptions are based on a series of studies done by other cities around the country that have shown increased crime near businesses with peep shows and strippers.

None of the studies looked at boutiques specifically, but Roy claims the studies show enough evidence of harm that regulation of the shops is permissible. Some of the studies did examine shops that sold pornography.

One of Doctor John’s arguments has been that it is not enough like a strip club to be regulated like one. Court briefs also point out that the business caters mostly to couples and women rather than single men, who commonly frequent the peep shows and strip bars examined in the studies.

Utah civil rights lawyer Andrew McCullough said that a female clientele doesn’t bring the same crime increases.

“We are trying to educate the court that we are not the kind of business that they need to be regulating,” he said. “Doctor John’s stores don’t pollute anything. Our job has been to educate.”

Harmer calls that argument specious.

“Adult novelties are sex devices. They’re intended to be addictive items, and we think they’re obscene,” he said. “What is the difference between pornography and a device for some other type of sexual deviance?”

Harmer believes the Roy law and others like it around Utah are just. He advocates for increased enforcement of the law and is working to prove scientifically that sexually explicit media is harmful.

Blackburn also believes the ordinance is just and firmly rooted in the rule of law. The Supreme Court has agreed that governments can regulate sexual speech through zoning and licensing.

Sexual speech that qualifies as obscenity can be banned, but nothing in Doctor John’s shops has been proved to meet that standard. Obscenity was defined in the 1950s by a three-prong test that looks at community standards, patent offensiveness and a lack of serious literary, artistic, political or scientific value.

Coil believes he is on the front lines of fighting for freedom and pleasure. Adults should be able to purchase what they want and do what they want in the privacy of their own homes, he said


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