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Case 2:16-cv-00318-DN Document 57 Filed 03/06/17 Page 1 of 32

PARKER DOUGLAS (8924)


Chief Federal Deputy
DAVID N. WOLF (6688)
GREG SODERBERG (14016)
Assistant Utah Attorneys General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
E-mail: gmsoderberg@utah.gov
Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CINEMA PUB, L.L.C., d/b/a BREWVIES, DEFENDANTS MOTION FOR


SUMMARY JUDGMENT AND
Plaintiff, SUPPORTING MEMORANDUM

v.

SALVADOR D. PETILOS, Director; CADE


MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance, Case No. 2:16-cv-00318-DN
Licensing Enforcement, Utah Department of
Alcoholic Beverage Control, in their official Judge David Nuffer
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDA SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities,

Defendants.
Case 2:16-cv-00318-DN Document 57 Filed 03/06/17 Page 2 of 32

TABLE OF CONTENTS

MOTION........................................................................................................................................ vi
MEMORANDUM ........................................................................................................................ vii
INTRODUCTION .................................................................................................................... vii
BACKGROUND FACTS ........................................................................................................ viii
STATEMENT OF ELEMENTS AND UNDISPUTED FACTS ............................................... x
A. Utah Code Ann. 32B-1-504 is Subject to Intermediate Scrutiny Under OBrien. ...... x
B. The OBrien Test. .......................................................................................................... xi
SUMMARY JUDGMENT STANDARD ............................................................................... xiii
ARGUMENT .............................................................................................................................. 1
1. THE STATUTE IS SUBJECT TO INTERMEDIATE SCRUTINY UNDER
OBRIEN BECAUSE THE STATUTES PURPOSE IS UNRELATED TO THE
SUPPRESSION OF FREE EXPRESSION. ....................................................................... 1
2. THE STATE REGULATES ALCOHOL SALES AND CONSUMPTION
PURSUANT TO ITS LEGITIMATE GOVERNMENTAL POWER................................ 3
3. THE STATUTE FURTHERS THE IMPORTANT GOVERNMENT INTEREST
OF REDUCING THE ADVERSE SECONDARY EFFECTS THAT RESULT FROM
COMBINING ALCOHOL AND SEXUAL CONTENT IN FILM. .................................. 4
Little is Required to Support the Governmental Interest ................................................ 5
Secondary Effects Definition .......................................................................................... 6
Prior Judicial Opinions Support the Governmental Interest ........................................... 7
Evidence Supports the Governmental Interest ................................................................ 8
Plaintiffs Expert Testimony Fails to Cast Direct Doubt on Defendants Rationale .... 10
4. THE STATUTE INCONVENIENCES SPEECH NO MORE THAN
NECESSARY TO ACHIEVE ITS PURPOSE. ................................................................ 14
5. SECTION 32B-1-504(7) IS CONSTITUTIONAL UNDER THE UTAH
CONSTITUTION. ............................................................................................................ 17
CONCLUSION ......................................................................................................................... 19

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TABLE OF AUTHORITIES

Cases

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ................................................... xi, 3, 7

Abilene Retail No. 30, Inc. v. Bd. of Commrs of Dickinson Cty., Kan., 492 F.3d 1164 (10th Cir.
2007) ........................................................................................................................................... 4

Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000) ................................. 14

American Bush v. City of S. Salt Lake, 2006 UT 40, 140 P.3d 1235 ...................................... 17, 18

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 1

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) .......................................................... 5, 8, 9, 15

Bens Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003) ...................................... 7, 15

Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121 (7th Cir. 2001) ................................. vi, 7

Boos v. Barry, 485 U.S. 312 (1988) ................................................................................................ 7

Branzburg v. Hayes, 408 U.S. 665 (1972) ..................................................................................... xi

Bushco v. Shurtleff, 729 F.3d 1294 (10th Cir. 2013) ..................................................................... xi

BZAPS, Inc. v. City of Mankato, 268 F.3d 603 (8th Cir. 2001) .................................................. 7, 8

California Retail Liquor Dealers Assn v. Midcal Aluminum, Inc., 445 U.S. 97 (1980) .......... xi, 4

California v. LaRue, 409 U.S. 109 (1972) ...................................................................................... 7

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................ xiii

City of Erie v. Paps A.M., 529 U.S. 277 (2000) ..................................................... xiii, 1, 2, 4, 6, 7

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) ......................... 1, 2, 3, 4, 6, 14

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)............................................ xiii, 3, 4

Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd., of


California, 121 Cal. Rptr. 2d 729 (Cal. Ct. App. 2002) .............................................................. 7

iii
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G.M. Enterprises, Inc. v. Town of St. Joseph, Wis., 350 F.3d 631 (7th Cir. 2003)......................... 7

Gary v. City of Warner Robins, 311 F.3d 1334 (11th Cir. 2002) ................................................... 7

Heideman v. S. Salt Lake City, 165 Fed. Appx. 627 (10th Cir. 2006) ............................................ 7

Heideman v. S. Salt Lake City, 348 F.3d 1182 (10th Cir. 2003)................................... x, 1, 2, 5, 16

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .................................................................... xi

Marks v. United States, 430 U.S. 188 (1977) ................................................................................. 2

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)...................................... 1

Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir. 1997) ........................................................ 6

Richland Bookmart, Inc. v. Knox Cty., Tenn., 555 F.3d 512 (6th Cir. 2009) ................................. 5

Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir. 1997) ................ 17

Sammys of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir. 1998) ...................... vi, vii, 15

Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981)................................................................. xi

State v. Hernandez, 2011 UT 70, 268 P.3d 822 ............................................................................ 17

United States v. OBrien, 391 U.S. 367 (1968) ................................................... x, xi, 1, 2, 3, 6, 10

United States v. Simons, 129 F.3d 1386 (10th Cir. 1997) ............................................................... 1

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ...................................................................... 6

West v. Thomson Newspapers, 872 P.2d 999 (Utah 1994) ........................................................... 17

Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) ......................................................... 7

Statutes

United States Constitution amend. XXI, 2.................................................................................. 4

United States Constitution amend. 1 ............................................................................................. vii

Utah Code Ann. 32B-1-502(1) ............................................................................................ x, 2, 6

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Utah Code Ann. 32B-1-504 ................................................................................................. x, 1, 3

Utah Code Ann. 32B-1-505 ......................................................................................................... 8

Utah Const. art. I, 1 .................................................................................................................... 17

Rules

Federal Rule of Civil Procedure 56(a) ................................................................................ v, vi, xiii

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MOTION

Defendants, through counsel and pursuant to Federal Rule of Civil Procedure 56(a) and

District of Utah Local Rules 7-1 and 56-1, submit this Motion for Summary Judgment and

Supporting Memorandum. Summary judgment is warranted on Plaintiffs claims because

prohibiting alcohol service during movies with explicit sexual content does not violate Plaintiffs

First Amendment rights, or Plaintiffs rights under the Utah Constitution.

Utah Code section 32B-1-504(7) (the Statute), which prohibits Department of

Alcoholic Beverage Control (the DABC) licensees from serving alcohol while showing a film

with sexually explicit content, should be upheld because it reduces adverse secondary effects.

Judicial opinions and alcohol experts confirm what is commonly known: that combining alcohol

and sexual content is an explosive combination,1 that can lead to sexual aggression and sexual

violence, increased drinking, and reported and unreported crime.2 The Statutes purpose and

effect are to reduce these adverse secondary effects that result from combining alcohol and

sexually explicit images.

Plaintiffs First Amendment right to transmit the speech of another (by showing

Deadpool or other films) is only inconvenienced slightly, if at all, by the states regulation, and

the publics access to protected speech is not impeded at all. Plaintiff is free to show whatever

sexually explicit R-rated films it chooses, so long as it does not serve alcohol at the same time,

1
Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1124 (7th Cir. 2001).
2
Dr. William George Expert Report p. 2 doc. 37-1, attached as Defs. App. p. 5.
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and individuals can see the same movies at other theaters. Plaintiff does not have a constitutional

right to serve beer while showing movies.3

Movies that are prohibited at Brewvies while alcohol is served are not censored in

general by the State. In fact, Deadpool was shown at numerous other theaters in Utah,4 and it is

the highest grossing R-rated movie in the history of film.5 There is no suppression of ideas or

expression occurringonly alcohol regulation aimed at decreasing adverse secondary effects.

Defendants therefore ask the Court to find that the Statute does not violate Plaintiffs speech

rights under the United States and Utah Constitutions, grant Defendants Motion, and enter

summary judgment in favor of Defendants.

MEMORANDUM

INTRODUCTION

Plaintiff Cinemapub LLC, doing business as Brewvies (Brewvies) has sued

Defendants, seeking an order from this Court that the Defendants enforcement of the Statute

violates its constitutional rights.6 Plaintiffs single claim in its Complaint argues that the Statute,

which prohibits a business that is licensed with the DABC from serving alcohol while showing

films that depict sex, violates its rights under the First Amendment to the United States

Constitution and Article 1, sections 1 and 15 of the Utah Constitution.7

3
See Sammys of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 999 (11th Cir. 1998) (we are
unaware of any constitutional right to drink while watching nude dancing).
4
Pl.s Mot. Prelim. Inj., p. 6, doc. 6.
5
Id. at 5.
6
Compl. p. 8 25 doc. 1.
7
Id. pp. 78 2122
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BACKGROUND FACTS

The facts related to Brewvies serving alcohol while showing Deadpool are not in

dispute. Brewvies began showing Deadpool at its theater in February 2016.8 Brewvies was also

serving alcohol to its customers while they watched the film. The DABC asked the State Bureau

of Investigations Alcohol Unit to visit Brewvies and investigate.9 The Alcohol Unit visited

Brewvies, ordered beer, watched Deadpool, and noted scenes in Deadpool that violate the

Statute.10

The Alcohol Unit identified scenes depicting: numerous . . . acts of sexual intercourse

with the female counterpart during a holiday themed sex-montage . . . having sex while nude (we

see the woman sitting on the mans groin in bed, rocking on his lap as he fondles her bare breasts

and she gasps) . . . [h]e is then shown behind her while shes on her hands and knees engaged in

sexual intercourse.11

The officers also identified scenes depicting: [t]he main character in the film . . . on his

back under bed sheets briefly engaged in masturbation . . . using a stuffed unicorn toy.12

Another scene shows the main character (male) nude on his hands and knees on a bed while a

woman wearing a leather bikini (with a strap-on penis that isnt shown) has her groin area

pressed against the mans posterior . . . he is sweating and grimacing . . . during the sodomy . . .

scene.13

8
Id. p. 4 11.
9
See Reports from SBIs Alcohol Unit, attached as Defs. App. pp. 1418.
10
See id.; George Rebuttal Report pp. 1524 doc. 39-1 (images from Deadpool), attached as
Defs. App. pp. 3342.
11
Report of Agent Bullock, Defs. App. pp. 1618.
12
Id.
13
Id.
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Additionally, the officers reported a scene in which the main character (male) is naked.

His penis is visible three times in this scene . . . [and] a scene at a strip club . . . [in which] [a]

fully nude (female) stripper is shown for about three seconds (her breasts and pubic mound are

visible) . . . .14 Finally, [i]n the final credits, a drawing of the main character (male) is shown as

he rides on the back of a unicorn, he rubs its horn briefly until the horn shoots outs [sic] rainbows

(simulating orgasm). The tail of the unicorn raises slowly as he rubs the horn simulating arousal

until the horn shoots out the rainbows.15

Based on the Bureau of Investigations finding, the DABC issued a Notice of Agency

Action, 16 which charged Brewvies with violating the Statute because Brewvies served alcohol

while showing Deadpool.17 The DABC agreed to stay the administrative proceeding, as well as

any enforcement of the Statute against Brewvies, during the pendency of this lawsuit.

Accordingly, Brewvies has not paid a fine or had any administrative action taken against its

license, and is able at this time to serve alcohol while showing films that depict sex or nudity.

There is no question that Brewvies served alcohol while showing Deadpool, which

contains graphic sexual images.18 The central issue presented here is whether the Statute is

justified by an important or substantial government interest. As shown below, prohibiting alcohol

service during films with sexual content furthers the important government interest of reducing

adverse secondary effects that result from the combination of alcohol and sexual content in film.
14
Id.
15
Id.
16
Compl. p. 4 12.
17
Id. pp. 45 1314; see Notice of Agency Action, attached as Defs. App. pp. 8588.
18
See Images from Deadpool, attached to Dr. Georges Rebuttal Report, Defs. App. 3342.
Brewvies has also shown numerous other films that contain graphic sexual images and served
alcohol to its customers during these films. See Images from Don Juan, 50 Shades of Grey, and
Zack and Miri Make a Porno, attached to Dr. Georges Rebuttal Report, Defs. App. 4384; see
also List of Films Shown at Brewvies, Defs. App. 32630.
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The Statute is constitutional because: (1) its purpose is unrelated to speech suppression; (2) it is a

valid exercise of the States power to regulate alcohol; (3) it furthers a substantial government

interest; and (4) it prohibits no more speech than necessary to further the governments interest.

STATEMENT OF ELEMENTS AND UNDISPUTED FACTS

A. Utah Code Ann. 32B-1-504 is Subject to Intermediate Scrutiny Under OBrien.

Ordinances that impact expression are subject to intermediate scrutiny under United

States v. OBrien, 391 U.S. 367 (1968) if the purpose of the ordinance in question is unrelated

to the suppression of free expression.19

1. The Statutes purpose is to reduce the adverse secondary effects that the attire,

conduct, and sexually oriented entertainers may have upon communities of this state;

and protect the health, peace, safety, welfare, and morals or the residents of

communities of this state.20

2. The Statute states:

[t]he following attire and conduct on premises or at an event regulated by the


commission under this title are considered contrary to the public health, peace,
safety, welfare, and morals, and are prohibited: . . . showing a film, still
picture, electronic reproduction, or other visual reproduction depicting: (a) an
act or simulated act of: (i) sexual intercourse; (ii) masturbation; (iii) sodomy;
(iv) bestiality; (v) oral copulation; (vi) flagellation; or (vii) a sexual act that is
prohibited by Utah law; (b) a person being touched, caressed, or fondled on
the breast, buttocks, anus, or genitals; (c) a scene wherein an artificial device
or inanimate object is employed to depict, or a drawing is employed to
portray, an act prohibited by this section; or (d) a scene wherein a person
displays the genitals or anus.21

19
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1195 (10th Cir. 2003) (quoting United States v.
OBrien, 391 U.S. 367, 377 (1968)).
20
Utah Code Ann. 32B-1-502(1).
21
Id. 32B-1-504(7).
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B. The OBrien Test.

A statute that impacts expression22 is upheld if (1) it is within the governments

constitutional power; (2) it furthers an important or substantial government interest; (3) the

government interest is unrelated to speech suppression; and (4) the incidental restriction on

alleged First Amendment freedoms is no greater than is essential to the furtherance of that

interest.23

1. Regulating alcohol and enacting statutes to protect the health, safety, and welfare of Utah

communities and to reduce adverse secondary effects are within the States constitutional

power.24

2. Combining alcohol and sexual content in film produces adverse secondary effects, and

negatively affects the health, safety, and welfare of Utah communities. 25 Defendants expert

witness, Dr. William George, stated in his Expert Report and testified as follows:

a. Alcohol contributes causally to adverse responses to sexual conduct.26

22
The First Amendment right at issue here is likely rooted in the Freedom of the Press, rather
than Speech, because Brewvies seeks to protect its right to transmit the speech of another to the
public. See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (stating that Freedom of the Press is
not confined to newspapers and periodicals and that the Freedom of the Press comprehends
every sort of publication which affords a vehicle of information and opinion.); Joseph Burstyn,
Inc. v. Wilson, 343 U.S. 495, 501 (1952) (It cannot be doubted that motion pictures are a
significant medium for the communication of ideas.); see also Schad v. Borough of Mt.
Ephraim, 452 U.S. 61, 6566 (1981) (sexually explicit content that is not obscene is protected
under First Amendment).
23
Bushco v. Shurtleff, 729 F.3d 1294, 1304 (10th Cir. 2013) (quoting OBrien, 391 U.S. at 376).
24
Bushco, 729 F.3d at 1304 (finding that Utahs Sexual Solicitation Statute, enacted to protect
public health, safety, and morals, was enacted within the States constitutional power); 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 515 (1996) (regulating alcohol is within states
power); California Retail Liquor Dealers Assn v. Midcal Aluminum, Inc., 445 U.S. 97, 107
(1980) (same).
25
See Expert Report of Dr. William George, Professor of Psychology and Adjunct Professor of
American Ethnic Studies at the University of Washington in Seattle pp. 17 doc. 37-1, Defs.
App. pp. 413.
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b. Exposure to sexual content contributes causally to greater drinking.27

c. [I]f youre feeling positive arousal from seeing titillating scenes like those in

Deadpool, that would motivate you to want to maintain positive arousal by

having a drink.28

d. Alcohol and exposure to sexual content can have synergistic effects.29

Including drinking in anticipation of exposure to sexual content . . . actual

exposure to sexual content that then stimulates arousal and further drinking . .

. and alcohol induced lowering of inhibitions thereby further increasing

responsivity to the sexual content and thereby heightening the likelihood of

adverse sexual outcomes.30

e. Combining drinking alcohol and viewing scenes in movies portraying casual

sex likely increases sexually aggressive behavior.31

f. There is sexually arousing content in Deadpool that alters peoples sexual

conduct, either to be more aggressive or taking more risk, compared to the

hypothetical control condition of seeing something that doesnt have that

content.32

g. [A]dverse secondary effectssuch as sex crimes (e.g., prostitution) and

sexual violence (e.g., rape) are likely in communities adjacent to

26
Id. at 2; see also Dr. George Dep. pp. 5158, Defs. App. 93100.
27
Dr. George Expert Report at 3 Defs. App. 6.
28
Dr. George Dep. p. 12124, Defs. App. 10104.
29
Dr. George Expert Report p. 3 doc. 37-1, Defs. App. p. 6.
30
Id.
31
Dr. George Dep. pp. 15152, Defs. App. 11415.
32
Id. at 14243, Defs. App. 11213.
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establishments providing their clientele with both alcohol and exposure to

sexual content.33

3. Defendants also rely on judicial opinions that describe the evidentiary basis for finding

that adverse secondary effects result from combining alcohol and sex or nudity.34

4. Reducing adverse secondary effects of combining alcohol and sexual content in film is

unrelated to speech suppression.35

5. The State does not otherwise restrict showing or viewing R-rated movies like Deadpool.

At the time the Citation was issued, Deadpool was still showing in at least seven movie theaters

in northern Utah (two months after it was released).36 Deadpool is the highest grossing R-rated

movie in the history of film.37

SUMMARY JUDGMENT STANDARD

A party seeking summary judgment bears the responsibility of informing the district court

of the basis for its motion, and the motion should be granted so long as what is before the district

court demonstrates the standard set forth in Rule 56 is satisfied.38

33
Dr. George Expert Report p. 3 doc. 37-1, Defs. App. p. 6.; Dr. George Dep. pp. 135142,
Defs. App. 10512. The quoted portions from Dr. Georges report and deposition are just part of
Dr. Georges extensive analysis and opinions regarding the adverse secondary effects of
combining alcohol and sexually explicit film. Defendants incorporate by reference Dr. Georges
opinions and reports, and further reference to his reports is contained in Defendants Argument
section, infra.
34
See infra footnote 73 (citing cases); City of Erie v. Paps A.M., 529 U.S. 277, 297 (2000)
(OConnor, J., joined by three justices) (citing City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986) for the proposition that reliance on a judicial opinion that describes the
evidentiary basis is sufficient).
35
See City of Erie, 529 U.S. at 310 (Souter, J., concurring in part and dissenting in part) (Eries
stated interest in combating the secondary effects associated with nude dancing establishments is
an interest unrelated to the suppression of expression.)
36
Pl.s Mot. Prelim. Inj., p. 6, doc. 6.
37
Id. at 5.
38
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986).
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To support summary judgment, the movant must point to evidence in the record that

demonstrates an absence of a genuine issue of material fact, given the relevant substantive law.39

The substantive law of the case determines which facts are material.40

To defeat a motion for summary judgment, Plaintiff cannot merely rest on the allegations

contained in the Complaint. Instead, Plaintiff must, by affidavits or as otherwise provided in

this rule, set out specific facts showing a genuine issue for trial.41

ARGUMENT

Utah Code 32B-1-504(7) does not violate Plaintiffs First Amendment right because (1)

the Statutes purpose is unrelated to speech suppression; (2) the State is regulating alcohol and

protecting the health, safety, and welfare of Utah communities pursuant to a legitimate

governmental power; (3) the Statute furthers the important government interest of reducing

adverse secondary effects that result from combining alcohol with viewing depictions of sex and

sexual content; and (4) the incidental restriction on speech is no greater than necessary to further

the governments interest. Similarly, the statute is constitutional under the Utah Constitution.

1. THE STATUTE IS SUBJECT TO INTERMEDIATE SCRUTINY UNDER OBRIEN


BECAUSE THE STATUTES PURPOSE IS UNRELATED TO THE SUPPRESSION
OF FREE EXPRESSION.

Ordinances that impact expression are evaluated under the OBrien test if the government

purpose in enacting the ordinance in question is unrelated to the suppression of free


39
United States v. Simons, 129 F.3d 1386, 1388 (10th Cir. 1997).
40
Id.; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (Only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be
counted.).
41
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson, 477
U.S. at 256.
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expression.42 If the governmental purpose in enacting the regulation is unrelated to the

suppression of expression, then the regulation need only satisfy the less stringent standard from

OBrien . . . .43

In this case, the Statutes purpose is to reduce the adverse secondary effects that result

from combining alcohol and viewing sexual content in film.44 The proscriptions in the Statute are

directed at prohibiting the service of alcohol at businesses where sexual imagery is displayed, the

purpose of the Statute is not to suppress speech.45 If the Utah legislature had wanted to suppress

speech it would have prohibited Utah theaters from showing films with sexual content, by

promulgating a much broader law that applied to all theaters. Instead, the Statute only impacts

DABC licensees that want to serve alcohol while showing films with sexually explicit content.

It is typical of conduct restrictions evaluated under OBrien to include some expressive, as well

as some non-expressive, activities within their reach.46 The Statute is subject to intermediate

42
Heideman, 348 F.3d at 1195 (quoting OBrien, 391 U.S. at 377); see also City of Los Angeles
v. Alameda Books, Inc., 535 U.S. 425, 445 (2002) (Kennedy, J., concurring in the judgment) (A
[government regulation] can be consistent with the First Amendment if it is likely to cause a
significant decrease in secondary effects and a trivial decrease in the quantity of speech.); City
of Erie, 529 U.S. at 289 (To determine what level of scrutiny applies to the ordinance at issue
here, we must decide whether the States regulation is related to the suppression of expression.)
43
City of Erie, 529 U.S. at 289.
44
Utah Code Ann. 32B-1-502(1); Heideman, 348 F.3d at 1195 (rejecting argument that South
Salt Lake public nudity prohibitions were subject to strict scrutiny and applying OBrien).
45
Alameda Books, 535 U.S. at 449 (Kennedy, J., concurring in the judgment) (The ordinance
may identify the speech based on content, but only as a shorthand for identifying the secondary
effects outside.); see also Marks v. United States, 430 U.S. 188, 193 (1977) (When a
fragmented Court decides a case and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds. (internal quotation marks omitted)).
46
Heideman, 348 F.3d at 1195.
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scrutiny under OBrien because the Statute does not . . . constitute impermissible content

discrimination.47

The Statute is located in the Alcoholic Beverage Control Act, because its purpose relates

to alcohol regulation, not speech suppression. In City of Los Angeles v. Alameda Books, 535 U.S.

425 (2002), Justice Kennedy concluded that the zoning law at issue there was more in the

nature of a typical land-use restriction and less in the nature of a law suppressing speech

because the zoning law was just one part of an elaborate web of land-use regulations in Los

Angeles . . . .48 Like the zoning law in Alameda Books, the General Requirements on Attire and

Conduct listed in Utah Code 32B-1-504 are part of a web of alcohol regulations found in Title

32B of the Utah Code.

The Statutes purpose is to regulate alcohol and reduce adverse secondary effects caused

by combining sexual content in film with alcohol, not suppress speech. Accordingly, the Statute

is subject to intermediate scrutiny under OBrien.

2. THE STATE REGULATES ALCOHOL SALES AND CONSUMPTION PURSUANT


TO ITS LEGITIMATE GOVERNMENTAL POWER.

The State of Utahs regulation of alcohol sales and consumption during portrayals of

sexual conduct, aimed at reducing adverse secondary effects, is within its general police

powers.49 Under the Twenty-First Amendment, states are given control over the transportation

47
See Alameda Books, 535 U.S. at 447 (Kennedy, J., concurring in the judgment) (A zoning law
need not be blind to the secondary effects of adult speech, so long as the purpose of the law is
not to suppress it.)
48
535 U.S. at 447 (Kennedy, J., concurring in the judgment).
49
Bushco, 729 F.3d at 1304 (finding that Utahs Sexual Solicitation Statute, enacted to protect
public health, safety, and morals, was enacted within the States constitutional power); 44
Liquormart, Inc., 517 U.S. at 515.
3
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or importation of alcohol into their territories.50 [S]uch control logically entails considerable

regulatory power not strictly limited to importing and transporting alcohol.51 The State of Utah

also has constitutional power to protect public health and safety.52

Enacting laws that relate to alcohol regulation and reduce adverse secondary effects, and

protecting public health and safety, are within Utahs governmental power.

3. THE STATUTE FURTHERS THE IMPORTANT GOVERNMENT INTEREST OF


REDUCING THE ADVERSE SECONDARY EFFECTS THAT RESULT FROM
COMBINING ALCOHOL AND SEXUAL CONTENT IN FILM.

For a state to show that a statute furthers an important government interest, the evidence

relied upon must be reasonably relevant to the problem that the state seeks to address.53 A state

must have latitude to experiment, at least at the outset, and . . . very little evidence is

required.54 A state may rely on, among other things, prior judicial opinions55 and scientific

evidence.56

A plaintiff may then cast direct doubt on [the governments] rationale, either by

demonstrating that the [government]s evidence does not support its rationale or by furnishing

evidence that disputes the [government]s factual findings . . . .57 If a plaintiff fail[s] to cast

50
U.S. Const. amend. XXI 2.
51
California Retail Liquor Dealers Assn, 445 U.S. at 107.
52
City of Erie, 529 U.S. at 296.
53
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 5152 (1986).
54
Alameda Books, 535 U.S. at 451 (Kennedy, J., concurring in the judgment) (citing City of
Renton).
55
City of Erie, 529 U.S. at 297 (OConnor, J., joined by three justices) (citing City of Renton for
the proposition that reliance on a judicial opinion that describes the evidentiary basis is
sufficient).
56
Abilene Retail No. 30, Inc. v. Bd. of Commrs of Dickinson Cty., Kan., 492 F.3d 1164, 1174
(10th Cir. 2007) (legislators are free to consider anecdotal evidence, statistical data, prior cases,
and their common sense.)
57
Alameda Books, 535 U.S. at 43839; see also Abilene Retail No. 30, 492 F.3d at 117374
(referring to the Alameda Books Courts burden-shifting approach).
4
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direct doubt on the governments rationale, then the government meets the standard set forth in

Renton.58 Here, Defendants rely on prior judicial opinions and testimony from the leading

expert on the interplay between alcohol and sexually explicit images or films, Dr. William

George. Dr. Georges opinions are based on his own experiments and experience, as well as

studies and peer-reviewed papers from others working in the field. Plaintiffs unsupported

conclusions fail to cast direct doubt on Defendants rationale, and thus the Defendants important

government interests meet the standard set forth in Renton and Alameda Books.

Little is Required to Support the Governmental Interest

A state is not required to conduct new studies or produce evidence independent of that

already generated by other cities . . . .59 A state is not required to obtain or rely upon evidence

specific to each type of business to be regulated.60 A state is not required to provid[e] evidence

that rules out every theory . . . that is inconsistent with its own.61 Nor are local governments

required to demonstrate empirically that its proposed regulations will or are likely to successfully

ameliorate adverse secondary effects.62

A state also does not need to show the actual intent of the enacting legislature.63 Rather, a

state must show the existence of a current governmental interest.64 Otherwise courts would be

58
Alameda Books, 535 U.S. at 439.
59
City of Renton, 475 U.S. at 51.
60
See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584 (1991) (Souter, J., concurring) (findings
of secondary effects in adult theaters appropriately extended to nude dancing establishments).
61
Heideman, 348 F.3d at 1199.
62
Richland Bookmart, Inc. v. Knox Cty., Tenn., 555 F.3d 512, 524 (6th Cir. 2009) (citing
Alameda Books, 535 U.S. at 439).
63
Barnes, 501 U.S. at 582 (Souter, J., concurring) (This asserted justification for the statute
may not be ignored merely because it is unclear to what extent this purpose motivated the
Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into
the actual intent of the enacting legislature, but rather the existence or not of a current

5
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voiding statutes which would otherwise not be voided if a legislator made a wiser speech

about it.65

Here, the States important government interest that is furthered by the Statute is to

reduce adverse secondary effects that result from the combination of alcohol and viewing

sexually explicit films.66 Defendants rely on prior judicial opinions and expert testimony to

support their governmental interest.

Secondary Effects Definition

The Supreme Court has defined secondary effects as being correlated with, but not

directly a consequence of, the impact of the speech.67 Examples of secondary effects include:

providing an atmosphere conducive to violence, sexual harassment, public intoxication,

prostitution, the spread of sexually transmitted diseases,68 crime in surrounding neighborhoods, a

governmental interest in the service of which the challenged application of the statute may be
constitutional.).
64
Id.; see also Phillips v. Borough of Keyport, 107 F.3d 164, 178 (3d Cir. 1997) (There is a
significant difference between the requirement that there be a factual basis for a legislative
judgment presented in court when that judgment is challenged and a requirement that such a
factual basis have been submitted to the legislative body prior to the enactment of the legislative
measure. We have always required the former; we have never required the latter.).
65
OBrien, 391 U.S. at 384.
66
Utah Code Ann. 32B-1-502(1).
67
See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (in the area of sound
amplification: a regulation that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not others.); see
also City of Renton, 475 U.S. at 48 (some regulations of businesses that purvey sexually explicit
materials are treated as content-neutral because they are justified without reference to the
content of the regulated speech).
68
City of Erie, 529 U.S. at 290.
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decrease in property values, a decrease in the quality of the citys neighborhoods,69 unsanitary

conditions, unlawful sexual activity,70 and other deleterious effects.71

Prior Judicial Opinions Support the Governmental Interest

Defendants rely on judicial opinions, and authority and analysis in those opinions, to

support the States important government interest.72 Many courts have concluded, after

considering relevant studies, that adverse secondary effects resulting from combining alcohol

and sex or nudity (whether in film or live dancing) are reduced by government regulation, and

that such regulations do not violate the First Amendment.73 Many of the cases just cited relate to

69
Alameda Books, 535 U.S. at 434.
70
Heideman v. S. Salt Lake City, 165 Fed. Appx. 627, 631 (10th Cir. 2006) (unpublished); see
also Boos v. Barry, 485 U.S. 312, 320 (1988); see also City of Renton, 475 U.S. at 5051; Young
v. American Mini Theatres, Inc., 427 U.S. 50, 7172 (1976) (Stevens, J., writing for plurality).
71
City of Erie, 529 U.S. at 290.
72
Id. at 297 (OConnor, J., joined by three justices) (citing City of Renton for the proposition that
reliance on a judicial opinion that describes the evidentiary basis is sufficient).
73
California v. LaRue, 409 U.S. 109, 118 (1972) (stating that the Departments conclusion,
embodied in these regulations, that certain sexual performances and the dispensation of liquor by
the drink ought not to occur at premises that have licenses was not an irrational one.) disagreed
with by 44 Liquormart, Inc., 517 U.S. at 515 (stating that the LaRue Courts reliance on the
Twenty-first Amendment was erroneous, but persuaded that the same decision would have been
reached without reliance on the Twenty-first Amendment); G.M. Enterprises, Inc. v. Town of St.
Joseph, Wis., 350 F.3d 631, 633 (7th Cir. 2003) (holding that the Town had a reasonable basis
for believing that the ordinances [regulating nude dancing and prohibiting nude dancing where
alcohol is served] will reduce the undesirable secondary effects associated with sexually
oriented businesses . . . .); Blue Canary Corp., 251 F.3d at 1124 (noting that [l]iquor and sex
are an explosive combination); Department of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Bd. of California, 121 Cal. Rptr. 2d 729, 737 (Cal. Ct. App. 2002)
(stating that Blue Canaries explosive combination language is still broadly recognized
today); Bens Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003) (upholding
ordinance prohibiting the combination of alcohol service and nude dancing); Gary v. City of
Warner Robins, 311 F.3d 1334 (11th Cir. 2002) (concluding that First Amendment right of nude
dancer was not infringed at all by ordinance that prohibited nude dancing at establishment that
primarily derived sales from alcohol because dancer remain[ed] free to observe and engage in
nude dancing [elsewhere].); BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 60607 (8th Cir.
2001) (BZAPSs proposed use differs little from many other adult performances. The fact that
this performance is to last for only one night as opposed to what occurs in a so-called strip club
7
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the secondary effects of nude or semi-nude dancing during alcohol service. It is reasonable74 for

Defendants or the Utah legislature to rely on the cited cases and infer that alcohol service during

films with sexually explicit content would produce adverse secondary effects, and that those

effects would be reduced by regulation. That inference is validated by the facts of this case,

where a scene in Deadpool depicts a nude dancing establishment, with dancers fully nude,75 and

the fact that scenes from other movies shown at Brewvies contain graphic sexual content that

would be similar to what would be seen at adult theaters and SOBs operating in Utah.76 In fact,

the images in Deadpool and other movies shown at Brewvies display more nudity and are more

sexually explicit than what is allowed by live entertainers at DABC licensees.77 State law

prohibits a live sexually oriented entertainer from appearing or performing nude, and performing

or simulating intercourse or other sexual acts.78 Accordingly, prior judicial opinions validate the

Statute and its application here. States are not required affirmatively to undertake to litigate this

issue repeatedly in every case.79

Evidence Supports the Governmental Interest

Evidence demonstrates that combining alcohol and depictions of sex or nudity produces

adverse secondary effects. Dr. William George, a professor of psychology at the University of

that features an identical performance on a nightly basis does not preclude the city from
reasonably believing that the uses are related.).
74
Alameda Books, 535 U.S. at 452 (Kennedy, J., concurring in the judgment) ([Los Angeles] is
entitled to rely on that knowledge [of the streets of Los Angeles]; and if its inferences appear
reasonable, we should not say there is no basis for its conclusion.)
75
George Rebuttal Report pp. 2123 doc. 39-1 (images from Deadpool depicting scene located
in nude dancing establishment) Defs. App. 4143.
76
Id. pp. 2, 2566; see also Images from Don Juan, 50 Shades of Grey, and Zack and Miri Make
a Porno, attached to Dr. Georges Rebuttal Report, Defs. App. 4384.
77
Utah Code Ann. 32B-1-505.
78
Id.
79
Barnes, 501 U.S. 560, 58485 (1991) (Souter, J., concurring in the judgment).
8
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Washington in Seattle, described at length in his Expert Reports and deposition testimony, the

adverse secondary effects caused by combining alcohol and viewing sexual content in film.80 In

addition to being a professor of psychology, Dr. George has written more than 70 articles for

peer-reviewed publications relating to the impact of the combination of sexual content and

alcohol.81 Even Plaintiffs expert witness has identified Dr. George as the leading authority on

the potentially dishibiting [sic] effects of alcohol on sexual perception and aggression.82

Dr. Georges research demonstrates that:

Alcohol contributes causally to adverse responses to sexual conduct.83

Exposure to sexual content contributes causally to greater drinking.84

Alcohol and exposure to sexual content can have synergistic effects.85 Including

drinking in anticipation of exposure to sexual content . . . actual exposure to sexual

content that then stimulates arousal and further drinking . . . and alcohol induced

lowering of inhibitions thereby further increasing responsivity to the sexual content and

thereby heightening the likelihood of adverse sexual outcomes.86

80
Docs. 37-1, 39-1, attached as Defs. App. pp. 413 and 2084.
81
George Dep. p. 9 attached as Defs. App. p. 92.
82
Linz Expert Report p. 7 22 doc. 36-2 Defs. App. 122.
83
George Expert Report p. 2 doc. 37-1, Defs. App. p. 5; see also George Dep. pp. 5158, Defs.
App. 93100.
84
George Expert Report at 3 Defs. App. 5; see also George Dep. p. 12124, Defs. App. 10104
(if youre feeling positive arousal from seeing titillating scenes like those in Deadpool, that
would motivate you to want to maintain positive arousal by having a drink.).
85
George Expert Report at 3 doc. 37-1, Defs. App. p. 5.
86
Id.
9
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[A]dverse secondary effectssuch as sex crimes (e.g., prostitution) and sexual violence

(e.g., rape) are likely in communities adjacent to establishments providing their clientele

with both alcohol and exposure to sexual content.87

Acute alcohol intoxication increases mens intentions to engage in sexually aggressive

behavior.88

The presence of alcohol leads people to infer sexual intent in others.89

Exposure to sexual content can increase drinking.90

Dr. Georges conclusions are confirmed by his research and experiments, and by supporting

authorities.91

Dr. Georges conclusions, his supporting experiments, the supporting peer-reviewed

papers and reviews cited in his Report, and the prior judicial opinions meet the standard set by

the Court in Alameda Books, OBrien, and other secondary effects cases, and show that the

Statute reduces adverse secondary effects.92

Plaintiffs Expert Testimony Fails to Cast Direct Doubt on Defendants Rationale

Plaintiffs expert reports should be excluded or are not on point, and moreover, fail to

cast direct doubt on the judicial opinions, research studies, and expert testimony relied upon by

Defendants. Defendants filed their Motion to Exclude Plaintiffs Experts on January 27, 2017,

and incorporate arguments made in that Motion, that Plaintiffs experts Dr. Bishop and Ms.

87
Id.; Dr. George Dep. pp. 135142, Defs. App. 10512.
88
George Expert Report at 6 doc. 37-1, Defs. App. p. 8.
89
Id.
90
Id.
91
See, e.g., id. at 2 (citing reviews by Abbey & Wegner, 2015; Abbey, Wegner, Woerner,
Pegram, & Pierce, 2014; Crane, Godleski, Przybyla, Schauch, & Testa, 2015; Davis et al., 2014;
and George & Stoner, 2000).
92
Alameda Books, 535 U.S. at 449 (Kennedy, J., concurring in the judgment).
10
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Parker should be excluded and that Dr. Linzs Supplemental Report should be excluded, by

reference.

Plaintiffs expert testimony fails to cast direct doubt on Defendants rationale because

unlike Defendants expert witness, Plaintiffs expert Dr. Linz does not have particularized

knowledge regarding alcohol. Dr. Linz may have knowledge of secondary effects caused by

sexually oriented businesses, but [a]bsent from [his] broad statement of expertise is any

indication of expertise concerning alcohol and its effects . . . .93 Therefore, Dr. Linzs expertise

is not applicable to aspects of the case pertaining to alcohols effects combined with sexually

explicit content on sexually aggressive or risky behaviors or on precursors of such behaviors

(such as, sexual perception, sexual arousal, and sexual intent).94 And even Dr. Linzs statements

regarding secondary effects of adult businesses, his purported area of expertise, are subject to

important criticism. Dr. Linzs allegedly exhaustive research project of secondary effects

studies is incomplete because it does not take into account more recent studies . . . [containing]

contradictory scientific evidence . . . particularly in alcohol serving SOBs . . . .95

Dr. George further criticizes Dr. Linzs review of secondary effects studies, pointing out

that Dr. Linz argued that all studies showing adverse secondary effects are so methodologically

flawed as to be deemed not credible; whereas all studies he judges as methodologically credible

demonstrate either no negative secondary effects associated with adult businesses or a reversal of

the presumed negative effects.96 As Dr. George states, [i]t strains credulity that all studies

93
George Rebuttal Report p. 1 doc. 39-1, Defs. App. p. 20.
94
Id.
95
Id. at 2.
96
Id.
11
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consistent with his opinion are judged as methodologically credible and that all studies

inconsistent with his opinion are judged as not methodologically credible . . . .97

Dr. George also opines regarding the problem with specifying crime as the outcome

when considering secondary effects, as done by Dr. Linz.98 Specifying crime as the outcome

when considering secondary effects is a problem, especially when considering secondary effects

related to alcohol consumption and viewing sexual content in film, for the following reasons:

Not all crimes are reported to authorities. Therefore, criminal activity indicative of

negative secondary effects that does not get reported would not appear in Dr. Linzs

analyses. Yet these unreported crimes have a serious and significant negative impact:

they affect victims and their families; and the awareness of unreported crimes affects

feelings of safety and security by community members, thereby constituting adverse

secondary effects.99

It is well established that among the crimes that go unreported, sexual assault is a

leading offense, so much so that is has been dubbedlike domestic violenceas a

hidden crime (Parrot & Bechhofer, 1991). Therefore, sexually assaultive behavior that

has been consciously or unconsciously stimulated by exposure to nudity and simulated

intercourse, such as depicted in Deadpool, would be underreported and thus less likely to

surface in the crime statistics relied on by Dr. Linz.100

If alcohol is involved in a sexual assault, then the likelihood that the victim will report

or even acknowledge the assault is diminished (Cohn et al. 2013). Thus, an alcohol-

97
Id.
98
Id. at 3.
99
Id.
100
Id.
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involved or alcohol-facilitated sexual assault occurring in the aftermath of viewing

sexually explicit images like those shown in Deadpool or other movies containing

explicit sexual content would be even less likely to be reported to authorities than a non-

alcohol-involved assault.101

Choosing crime as an indicator of adverse effects necessitates that the researcher choose

a metric to operationalize crime in the study design and data analyses. According to the

aforementioned article by criminologists McCleary and Meeker, there is no single gold-

standard metric for operationalizing crime. Also, the metric chosen by Dr. Linz CFSs,

i.e., calls for service does not enjoy consensus among criminologists and is subject to

important criticisms.102

Dr. Linzs testimony fails to cast direct doubt on Defendants rationale because his knowledge

and testimony are not related to the subject matter of this case: alcohol and viewing sexual

content. Dr. Linzs testimony fails to cast direct doubt on Defendants rationale because it fails to

take into account the particularities of secondary effects that result from combining alcohol and

sexual content. Further, Dr. Georges testimony shows why Dr. Linzs studies and analysis are

unreliable in general (because they leave out important recent studies and suffer from

confirmation bias) and do not specifically relate to sexual aggression and sexual risk-taking

(because identifying crime and police calls for service as outcomes omits other secondary

effects).

Dr. Georges testimony, as well as the judicial opinions cited above addressing alcohol

regulations on businesses featuring nudity, show that the Statute furthers the important

101
Id.
102
Id.
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government interest of reducing adverse secondary effects that result from combining alcohol

and sexual content in film. Plaintiffs expert testimony fails to cast direct doubt on Defendants

rationale, and the Court should find that the Statute furthers an important government interest.

4. THE STATUTE INCONVENIENCES SPEECH NO MORE THAN NECESSARY TO


ACHIEVE ITS PURPOSE.

Perhaps most important to Justice Kennedy in his concurring opinion in Alameda Books

was the question of how speech will fare under the citys ordinance.103 In Alameda Books,

adult businesses brought a section 1983 action challenging a City of Los Angeles ordinance

prohibiting the operation of multiple adult businesses in a single building.104 One adult business

operated an adult bookstore, the other operated an adult video arcade.105

Below, the Ninth Circuit affirmed the district courts grant of summary judgment and

permanent injunction.106 The Ninth Circuit concluded that the ordinance in question was not

designed to serve the citys government interest in reducing crime, and therefore violated the

First Amendment.107 The Supreme Court reversed the Ninth Circuit, concluding that the Court of

Appeals erred in replac[ing] the citys theory [based on a study] . . . with its own [theory] . . .

.108 Justice Kennedy was concerned about inconveniencing speech because the necessary

rationale for applying intermediate scrutiny is the promise that [statutes] like this one may reduce

the costs of secondary effects without substantially reducing speech.109

103
Alameda Books, 535 U.S. at 450 (Kennedy, J., concurring in the judgment).
104
Id. at 429.
105
Id.
106
Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719, 720 (9th Cir. 2000), amended on
denial of reh'g (Aug. 28, 2000), rev'd, 535 U.S. 425 (2002).
107
Id. at 72428.
108
Alameda Books, 535 U.S. at 437.
109
Id. at 450 (Kennedy, J., concurring in the judgment).
14
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Here, the Statute inconveniences speech very little, or not at all, by only prohibiting

serving alcohol while showing films with sexual content. DABC licensees may show sexually

explicit films if alcohol is not served. Films with sexual content are available at other Utah

theaters. And prohibiting alcohol service during a film does not deprive a film of its message.

There is no constitutional right to drink beer while watching a movie or serve beer while

showing a movie.110

Showing Deadpool in Utah theaters was not suppressed. Plaintiff states that around the

time the citation was issued, Deadpool was still showing in at least seven movie theaters in

northern Utah (two months after it was released).111 It is the highest grossing R-rated movie in

the history of film.112 No person in Utah who wanted to see Deadpool was prevented from being

able to do so by the statute in question. And any theater that wanted to show Deadpool could do

so, provided that it did not also serve alcohol.113 Neither patrons nor theaters have a

constitutional right to drink or serve alcohol while films are playing.

Prohibiting alcohol service during a film does not deprive a film of whatever message the

film seeks to convey.114 In Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), businesses and

dancers that wished to present totally nude dancing sued Indiana to enjoin enforcement of a

110
See Sammys of Mobile, Ltd., 140 F.3d at 999 (we are unaware of any constitutional right to
drink while watching nude dancing).
111
Pl.s Mot. Prelim. Inj., p. 6, doc. 6.
112
Id. at 5.
113
Bens Bar, Inc., 316 F.3d at 725 n. 31 (stating that alcohol prohibition is, as a practical
matter, the least restrictive means of furthering the [defendant]s interest in combating the
secondary effects resulting from the combination of adult entertainment and alcohol
consumption . . . .).
114
See Barnes, 501 U.S. at 571 (the requirement that the dancers don pasties and G-strings does
not deprive the dance of whatever erotic message it conveys; it simply makes the message
slightly less graphic.).
15
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public indecency law, which required dancers to wear pasties and G-strings.115 The Court applied

the OBrien test and found that Indianas public indecency statute was justified despite its

incidental limitations on some expressive activity.116 The Court concluded that Indiana was not

seeking to prevent nude dancings erotic message, and stated that the requirement that the

dancers don pasties and G-strings does not deprive the dance of whatever erotic message it

conveys; it simply makes the message slightly less graphic.117 Dancing occurred at numerous

other . . . establishments and similar clubs without any interference from the State, so long as the

performers wear a scant amount of clothing.118

Like the statute in Barnes, the Statute here does not seek to prevent or interfere with a

films message, erotic or otherwise. The Statute inconveniences expression even less than cases

involving statutes completely prohibiting nude dancing. In cases involving nude dancing, the

nudity that is prohibited is arguably part of the message that is being conveyed. But here, serving

alcohol is unrelated to Deadpools message. The prohibition bears no relation to the films

message whatsoever. The prohibition against serving alcohol while showing films with sexual

content does not inconvenience speech greater than necessary to achieve the States purpose.

115
Id. at 56263.
116
Id. at 567.
117
Id. at 57071; accord Heideman, 348 F.3d at 1200 (the requirement that dancers wear G-
strings and pasties has a de minimus effect on their ability to communicate their message.).
118
Id.
16
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5. SECTION 32B-1-504(7) IS CONSTITUTIONAL UNDER THE UTAH


CONSTITUTION.
If the Court dismisses Plaintiffs speech claim grounded in the United States

Constitution, Plaintiffs speech claim based on the Utah Constitution should be dismissed

without prejudice for lack of jurisdiction.119

If the Court reaches the merits of Plaintiffs speech claim under the Utah Constitution,

Plaintiffs claim fails as a matter of law because the sexually graphic images in Deadpool are not

protected speech under the Utah Constitution.120 The Utah Supreme Court analyzes state

constitutional issues under the primacy model, which analyzes issues under the state constitution

before resorting to the federal constitution.121

In interpreting the Utah Constitution, the Utah Supreme Court has stated that the drafters

intent must be ascertained.122 Because the best evidence of the drafters intent is the

constitutional text, analysis begins with the text itself.123 Plaintiffs Complaint argues that

Section 32B-1-504(7) offends article 1, sections 1 and 15.124 Article 1, section 1 states:

All men have the inherent and inalienable right to enjoy and defend their lives and
liberties; to acquire, possess and protect property; to worship according to the
dictates of their consciences; to assemble peaceably, protest against wrongs, and
petition for redress of grievances; to communicate freely their thoughts and
opinions, being responsible for the abuse of that right.125

Article 1, section 15 states:

119
Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1237 (10th Cir. 1997).
120
American Bush v. City of S. Salt Lake, 2006 UT 40, 28, 140 P.3d 1235 (the Utah
Constitution provides, not absolute, but limited protection for the expression of ideas and
opinions.)
121
Id. 7 (citing West v. Thomson Newspapers, 872 P.2d 999, 100407 (Utah 1994)).
122
State v. Hernandez, 2011 UT 70, 8, 268 P.3d 822 (citing American Bush, 2006 UT 40, 12,
140 P.3d 1235).
123
Id. (citations omitted).
124
Compl., p. 10 1, doc. 1.
125
Utah Const. art. I, 1.
17
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No law shall be passed to abridge or restrain the freedom of speech or of the


press. In all criminal prosecutions for libel the truth may be given in evidence to
the jury; and if it shall appear to the jury that the matter charged as libelous is
true, and was published with good motives, and for justifiable ends, the party shall
be acquitted; and the jury shall have the right to determine the law and the fact.126

These two sections were analyzed at length in American Bush v. City of South Salt Lake,

2006 UT 40, 140 P.3d 1235. In American Bush, nude dancing establishments in South Salt Lake

brought suit after the South Salt Lake City Council adopted a new sexually oriented business

ordinance.127 The plaintiffs claimed that the Utah Constitution protected nude dancing.128 The

Utah Supreme Court disagreed and held, applying an originalism-type analysis, that article 1

sections 1 and 15 do not protect nude dancing.129 The court reached its decision, in-part, because

under the common law at the time the Utah Constitution was established, [b]lasphemous and

indecent publications, and the exhibition of indecent pictures and images, were always

punishable at the common law.130 Like the nude dancing at issue in American Bush, the images

and conduct portrayed in Deadpool (which includes a depiction of nude dancing) would have

been considered indecent under standards and case law at the time the Utah Constitution was

ratified. The images in Deadpool are therefore not protected speech under the Utah Constitution,

and judgment should be granted in favor of Defendants on Plaintiffs Utah Constitutional claim.

126
Id. art. I, 15
127
American Bush, 2006 UT 40 2, 140 P.3d 1235.
128
Id. 1.
129
Id.
130
Id. 51 (quoting Thomas M. Cooley, The General Principles of Constitutional Law in the
United States of America 28586 (2d ed. 1891)); see also id. 56 (Thus, when the Utah
Constitution was ratified, it was illegal for either men or women to expose themselves to even
willing participants in such a way as to excite lewd thoughts.).
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CONCLUSION

The Statute does not violate Plaintiffs First Amendment right to show films at its theater

because the State has an important and substantial interest in reducing the adverse secondary

effects caused by combining alcohol and sexual content in film. Defendants interest is unrelated

to speech suppression and inconveniences speech no greater than necessary to achieve its

purpose. Accordingly, Defendants ask the Court to grant summary judgment in favor of

Defendants.

DATED: March 6, 2017

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Greg Soderberg


PARKER DOUGLAS
Chief Federal Deputy Attorney General
DAVID N. WOLF
GREG SODERBERG
Assistant Utah Attorney General
Counsel for Defendants

19
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PARKER DOUGLAS (8924)


Chief Federal Deputy
DAVID N. WOLF (6688)
GREG SODERBERG (14016)
Assistant Utah Attorneys General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
E-mail: gmsoderberg@utah.gov
Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CINEMA PUB, L.L.C., d/b/a BREWVIES, APPENDIX OF EXHIBITS

Plaintiff,

v.

SALVADOR D. PETILOS, Director; CADE Case No. 2:16-cv-00318-DN


MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance, Judge David Nuffer
Licensing Enforcement, Utah Department of
Alcoholic Beverage Control, in their official
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDA SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities,

Defendants.

Defendants' Appendix 0001


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Ex. Title Source Page no.


1. Expert Report of Dr. William H. Expert Report of William H. George, 0003-13
George Ph.D. Filed on December, 31, 2016.
(Doc. 37-1)
2. Officer Incident Report Supplemental Report by Agent Sean 0014-18
Cannon, Case #16INV0142.
February, 26, 2016
3. Counter Expert Report of Dr. Points of Rebuttal to Expert Report of 0019-84
William H. George Daniel Linz, Ph.D. By William H.
George, Ph.D. Filed on Nov. 30, 2016.
(Doc. 39-1)
4. Notice of Agency Action and of Notice of Agency Action, Case 0085-88
Informal Adjudication and Number 2016-566-L. Executed by
Notice of Hearing Nina McDermott on March 31, 2016.
5. Dr. George Deposition excerpt Deposition of Dr. William H. George 0089-115
held on December 16, 2016.
6. Expert Report of Dr. Daniel Linz Expert Report of Dr. Daniel Linz. 0116-325
Filed on October 31, 2016.
(Doc. 36-2)
7. Brewvies Movie List Brewvies Twin Movie List Report 0326-330
date range from September 9, 2011 to
September 15, 2016. Received from
Plaintiff on September 23, 2016.

DATED: March 6, 2017.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/Greg Soderberg
PARKER DOUGLAS
Chief Federal Deputy
TYLER R. GREEN
Utah Solicitor General
DAVID N. WOLF
GREG SODERBERG
JEFFREY BUCKNER
Assistant Utah Attorneys General
Counsel for Defendant

2
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EXHIBIT A
Expert Report of Dr. William H. George

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Expert Report of William H. George, Ph.D.


Cinema Pub L.L.C., d/b/a Brewvies,
vs.
Members, Utah Alcoholic Beverage Control Commission, in their official capacities, et al.

A. Qualifications
William H. George, Ph.D. is currently Professor of Psychology and Adjunct Professor of
American Ethnic Studies at the University of Washington (UW) in Seattle. Dr. George completed his BA
at Rockford College majoring in Psychology and minoring in Criminology. From 1976 to 1984, He
completed his Ph.D. training at UW, including his Clinical Psychology Internship and Postdoctoral
Fellowship in Addictions. From 1984 to 1991, he was Assistant Professor and then Associate Professor at
the State University of New York at Buffalo. Dr. George has twice won his departments award for
graduate mentorship and has mentored 26 doctoral dissertations investigating alcohol and sexual
behavior, which have focused on various facets of the topic including: sexual risk-taking, sexual
perceptions, interest in erotica, perceptions of rape victims and perpetrators, rape disclosure, sex offender
recidivism and relapse, sexual assault perpetration, sexual assault resistance, efficacy of rape prevention
messages, etc. He has been Principal Investigator or Co-Investigator on a variety of NIH funded projects
related to alcohol and sexuality, including Women's HIV Risk: Alcohol Intoxication, Victimization
History & Partner Factors, Alcohol Myopia, Sexual Arousal & HIV/AIDS Risk-Taking, Perceived
Alcohol Effects on Women: Biases and Distortions, Alcohol and Condom Use Resistance in Sexually
Coercive/Violent Men, Alcohol & Womens Cognitive Mediation of HIV Risk Taking, Heterosexual
HIV Risk: Effects of Men's Alcohol Use and Sexual Violence, and Alcohol-Related Sexual Aggression:
An Emotion Regulation Intervention. Dr. George has over 160 publications, including book chapters,
peer-reviewed journal articles summarizing research findings, peer-reviewed journal articles describing
original scientific experiments, survey studies, and qualitative investigations. Dr. George is
internationally known for his research focusing on the role of alcohol in sexual arousal, sexual risk, and
sexual assault.
Therefore, Dr. George is eminently qualified to render opinions pertaining to the following
questions. What is understood scientifically speaking to be the nature of the relationship between
alcohol consumption and exposure to sexual content? Does joint exposure to both alcohol consumption
and sexual content foster or contribute to the occurrence of adverse secondary effects? Does the former
(what is understood scientifically about the alcohol-sexuality link) inform the latter (joint alcohol-sex
exposure and adverse secondary effects)? In addition to general opinions, four specific opinions are
submitted.

B. General Opinions
There are important epistemological and methodological points to make as preamble to stating
opinions about the aforementioned questions. These points provide an interpretive lens for evaluating the
relevance of scientific data to the aforementioned questions.
First, scientifically speaking, any demonstrated relationship between alcohol consumption and
sexual content or behavior can be characterized as either spurious, correlational, or causal. If spurious, the
appearance of a connection between them is merely coincidental. If correlational, the co-occurrence is
systematic but not causal. For example, in global association surveys, measures of past and current
drinking practices correlate positively with measures of past and current sexual outcomes. However,
while showing that individuals who tend to drink also tend to access sexual content and engage in
potentially problematic sexual behaviors, such data do not permit even the simplest determination that the

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drinking and sexual outcomes even occurred on the same day. Also, the classic third variable problem
exists whereby both drinking and the sexual outcomes of interest are mutually determined by other forces
(e.g. unconventionality or sensation-seeking). Scientifically speaking, causality can only be truly
determined using controlled experiments. An experiment can be defined here as a study in which a
variable say alcohol is deliberately and systematically manipulated by the researcher. In addition to
the obvious need to control extraneous influences (e.g., pre-drink food consumption) that might
contaminate the findings, the sine qua non of an experiment is the random assignment of research
subjects to the variable conditions say a consume-alcohol condition versus a consume-no-alcohol
condition. As a consequence, any differences between the two groups on say sexual behavior can only
be caused by alcohol consumption.
Second, it is important to distinguish the does it question from the can it question. For
example, to address the question of does alcohol cause people to become sexually violent, there are
various sources of evidence that would be informative, including both scientific evidence (e.g., surveys of
respondents past instances of drinking and sexual violence) as well as official records (e.g., 911 call logs,
crime data, incident/police reports, naturalistic studies, case law). Scientific experiments, on the other
hand, address the can it question: can alcohol do that or more precisely is alcohol capable of
exerting a causal impact on sexually violent behavior? It is only after this question has been answered
affirmatively that it makes logical sense to pose the follow-up question does alcohol cause people to
become sexually violent, that is, in the real world outside of the laboratory. Laboratory experiments have
in fact shown that acute alcohol intoxication is capable of exerting a causal impact indicative of an
increased sexual aggressiveness (see reviews by Abbey & Wegner, 2015; Abbey, Wegner, Woerner,
Pegram, & Pierce, 2014; Crane, Godleski, Przybyla, Schauch, & Testa, 2015; Davis et al., 2014; George
& Stoner, 2000). However, it was not known how alcohols laboratory-validated causal impact and
associated explanatory mechanisms might manifest in the real world. That is, would the alcohol and
sexual-aggression causal link replicate with naturally occurring events or would it be moderated,
superseded, or otherwise challenged by the inherent explanatory messiness of other real world
considerations and qualifiers (e.g., law enforcement presence)? My expertise is about experiments
addressing the can it question, and, its corollary given alcohols casual impact, how can it best be
explained and about the potential real world implications of these scientific findings. My four specific
opinions below are limited to that scope.
1. Opinion 1: Alcohol contributes causally to adverse responses to sexual content.
Actual alcohol consumption and the appearance of alcohol consumption are each capable
of exerting a causal impact increasing the likelihood that, when sexual content is provided, sexual
outcomes will occur and that these outcomes will intensify. For men, these outcomes include
seeking greater exposure to pornographic material (including deviant-erotic material such as the
faux sadomasochistic scene [Happy Womens Rights Day] depicted in Deadpool), expressing
greater liking of pornographic material, reporting being more sexually aroused by pornographic
material, an increased tendency to see women as sexually inclined and available, expressing a
greater intention to engage in sexually aggressive behavior, expressing a greater intention to
engage in sexual risk taking (e.g., willing to have unprotected intercourse with a new partner as
suggested by the initial intercourse scene in Deadpool). For women, these outcomes include
reporting being more sexually aroused by pornographic material, an increased tendency to see
men as sexually inclined and potentially sexually aggressive, expressing a lesser intention to
engage in sexual assault resistance, expressing a greater intention to engage in sexual risk taking
(e.g., willing to have unprotected intercourse with a new partner as suggested by the initial
intercourse scene in Deadpool).

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2. Opinion 2: Exposure to sexual content contributes causally to greater drinking.


Exposure to pornographic depictions of nudity and sexual intercourse is capable of
having a causal impact on alcohol consumption resulting in increased drinking. Only one
experiment has examined this reverse effect, whereby porn exposure fosters increased drinking
among men. Also, when men anticipated further exposure to deviant pornographic depictions,
they drank more as if drunkenness would excuse their prurient interests.
3. Opinion 3: Alcohol and exposure to sexual content can have synergistic effects.
Because alcohol contributes causally to adverse responses to sexual content and because
exposure to sexual content contributes to greater drinking, there exists the possibility of a synergy
the interaction of two or more agents to produce a combined effect greater than the sum of
their separate effects. This synergy could entail (a) drinking in anticipation of exposure to sexual
content, as if to pre-emptively excuse ones indulgence in such material, (b) actual exposure to
sexual content that then stimulates arousal and further drinking, as if to maintain the aroused
state, and (c) alcohol induced lowering of inhibitions thereby further increasing responsivity to
the sexual content and thereby heightening the likelihood of adverse sexual outcomes. Thus, the
synergistic product would be a greater likelihood of engaging in disinhibited or excessive sexual
behavior than would have been caused by either alcohol intoxication or sexual content alone
4. Opinion 4: The experimental findings described in Opinion 1 and 2 and the synergy
outlined in Opinion 3 imply that adverse secondary effects such as sex crimes (e.g.,
prostitution) and sexual violence (e.g., rape) are likely in communities adjacent to
establishments providing their clientele with both alcohol and exposure to sexual
content.
Because many of the responses and outcomes demonstrated in alcohol experiments can
be considered constituent elements (e.g., being aroused and willing to engage in risky or
aggressive sexual activities) of behavior patterns reflective of adverse secondary effects (e.g., as
sexual assault and soliciting prostitution), it is my opinion that provision of alcoholic drinks in
conjunction with depictions of nudity and sexual intercourse creates a synergy capable of
contributing causally to the prospect of adverse secondary effects. That is, evidence of basic
science experiments is congruent with the occurrence of adverse secondary effects.

C. Supportive scientific evidence - alcohol expectancy experiments: Beliefs about drinking


heighten responses to sexual content
Until 40 years ago, alcohols acute effects on behavior were understood to be exclusively a
product of pharmacology. Paradigm-shifting research emerged showing that alcohol expectancy set the
mere belief that one has consumed alcohol can produce many of the same effects and can do so
independent of actual intoxication. I devoted my early work to explaining how expectancy set influences
sexual responses. One idea deviance disavowal was that drinking provided a blame it on the booze
excuse for disinhibited behavior. Using the balanced placebo design (reviewed by George et al, 2012),
which permits independent manipulation of alcohols pharmacological versus expectancy properties, we
predicted and found support for the expectancy hypothesis. Expect-alcohol men were more responsive
behaviorally and attitudinally to sexual content than were expect-no-alcohol controls. The sexual content
in those experiments consisted of still photographic slides depicting simulated and actual intercourse, very
much like the depictions of simulated intercourse portrayed in Deadpool. Also, consistent with a deviance
disavowal mechanism, expect-alcohol men increased their responding as the sexual content became more
deviant (George & Marlatt, 1986). The deviant sexual content in those experiments depicted sexual-

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violent and sadomasochistic scenes, similar to the strap-on-wearing [Happy Womens Rights Day]
scene in Deadpool. It was also found that for deviance disavowal to work, one had to expect that alcohol
had sexually disinhibitory powers; thus post-drinking disinhibition should only occur if the person held
the a priori expectancy. For such people, this usually dormant expectancy becomes activated by
expectancy set cues that one had been drinking providing a seeming excuse for indulging in deviant
behavior: the booze made me do this.
Further, we also measured expectancies outright. Like others, we have found that people
generally expect that alcohol has sexually disinhibitory (George, et al., 1989) and enhancing (George et
al. 2000) powers. These findings further set the stage for validating a self-fulfilling prophecy analysis of
post-drinking sexuality. Alcohol expectancies become activated by situational cues notably the belief
that you or someone else has been drinking and then steer subsequent perceptions and reactions along
an expectancy-congruent course culminating in behavioral outcomes prefigured by the initial expectancy
(George et al. 2000). Thus, knowing that oneself and others have been drinking can initiate a chain of
events that could potentially culminate in making unwanted sexual advances toward another person.
Notably, the first sexual encounter depicted in Deadpool portrays that couple being strangers and as
drinking before the sexual encounter. Such a depictions could activate alcohol-sex expectancies in
viewers who have been drinking.

D. Supportive scientific evidence Alcohol and sexual arousal experiments: Acute alcohol
intoxication increases subjective sexual arousal and does not suppress genital arousal
(except at high dosages)
Approximately 24 experiments on men have evaluated alcohols acute effects using alcohol
administration, exposure to erotic material (either films, still photograph slides, text descriptions of
audiotapes of sexual scenarios), and assessments of self-reported and genital arousal. Initial experiments
indicated that (1) moderate-to-high doses attenuated erectile responding, known as attenuation; but, (2) in
no-alcohol and low-dose conditions, the belief that one had consumed an alcoholic drink (regardless of
actual content) led to increased self-reported and genital arousal, known as expectancy (see reviews by
Crowe & George, 1989; George & Norris, 1991; Wilson, 1977). These contrasting attenuation and
expectancy effects fit a narrative reflecting the Shakespearean paradox: Lechery, sir, it [drink] provokes,
and unprovokes: it provokes the desire, but it takes away the performance (Macbeth, 2.3.32). Alcohols
provokes effect seemed attributable to psychological properties a self-fulfilling prophecy of expecting
and then, as a result, experiencing alcohol-enhanced sexual responding (George et al., 2000). Whereas,
alcohols unprovokes effects were attributable to pharmacologically attenuating properties. The above
narrative stood as the established scientific conclusion about alcohols acute effects on mens arousal until
non-replication findings began to accrue. The attenuation effect was not universal (e.g., George & Stoner,
2000 ), occurring in less than half of the relevant experiments. Contrary to earlier findings, recent findings
addressing previous methodological problems suggest that relatively high dosages of alcohol have a
limited impact, with only certain types of attenuation (peak arousal) and only at very high doses (e.g.
George et al., 2006). Generally, it now appears that there is little basis to view alcohol as necessarily
interfering with sexual response for sexually functional men. It may be that a more robust attenuation
effect holds true but only at higher degrees of intoxication, much higher than .10%, which while
relatively rare in laboratory experimentation may be common in real life encounters.
Because alcohol can heighten mens subjective sexual arousal to sexual content while not
attenuating genital arousal, it is important to consider the role that post-drinking sexual arousal role can
play in sexual aggression. There is experimental evidence of alcohol increasing mens sexual arousal
(Davis et al., 2006a) and increasing their perception of a womans arousal (Davis et al., 2012); and both

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these post-drinking arousal effects led to increased likelihood of being sexual aggressive. Therefore, men
who have been drinking and are then exposed to eroticized scenes of simulated sexual intercourse, such
those depicted in Deadpool, are at elevated risk of becoming sexual aroused and having that arousal foster
tendencies toward being sexually aggressive.
For women, the picture with sexual arousal is somewhat different, perhaps in part because (1)
self-reported and genital arousal correspond to a lesser degree in women than men (r = .26 vs. .66,
respectively, Chivers et al., 2010) and (2) menstrual phases can affect alcohols acute effects on arousal.
More than 12 experiments have examined alcohols acute effects on self-reported arousal and the majority
found that alcohol increased self-reported arousal. Of ten experiments on genital arousal, six (e.g.,
Gilmore et al., 2010) found that alcohol attenuated genital arousal and four (e.g. Prause et al., 2011) found
no evidence of attenuation. Looking across both the self-report and genital arousal studies it appears
reasonable to contend that until the BAL exceeds .08%, women are likely to exhibit an arousal response
pattern characterized by enhanced self-reported sexual arousal and no alcohol-induced diminution in
genital arousal. Accordingly, an experiment with women found that alcohol increase sexual arousal and
that this increase resulted in an increased endorsement of rape myths, an endorsement which in turn led to
a lower likelihood of perceiving rape in a story depicting sexual assault (Davis, et al., 2006b). Therefore,
women who have been drinking and are then exposed to eroticized scenes of simulated sexual intercourse,
such those depicted in Deadpool, are at elevated risk of becoming sexual aroused and having that arousal
impair their capacity to accurately code a mans behavior as sexually aggressive, thus making them more
vulnerable.

E. Supportive scientific evidence Alcohol and sexual risk taking experiments: Acute
alcohol intoxication increases intentions to in engage in unprotected intercourse.
Alcohol affects sexual risk taking, defined as unprotected anal or vaginal intercourse with
partners of unknown infection status. Multiple independent investigative teams (e.g., Abbey et al., 2005;
Cho & Span, 2010; Fromme et al.,1999; George et al. 2009; Maisto et al., 2004; MacDonald et al. 1996;
Murphy et al., 1998; Prause et al., 2011) have established that alcohol can and does have a causal impact
on intentions to engage in unprotected intercourse with new and casual partners (see reviews by George &
Stoner, 2000; Hendershot & George, 2007; Rehm et al., 2012) and on mens intention to resist condom
use (Davis et al., 2012). Furthermore, experiments indicated that alcohols effects increasing sexual risk
taking are mediated by subjective but not physiological sexual arousal (e.g., George et al., 2009),
appraisals of impelling versus inhibiting cognitions (e.g., Norris et al., 2009), and disproportionate
attention to arousal over risk concerns (Davis et al., 2007); all mechanisms which are consistent with an
Alcohol Myopia Theory (Steele & Josephs, 1990) explanation. Importantly, these experiments all used
text descriptions of eroticized arousing heat-of-the-moment scenarios depicting semi-nudity, nudity,
sexual foreplay and fondling, similar to scenes depicted in Deadpool.
Alcohol Myopia Theory emphasizes the importance of alcohol content over expectancy set.
Drawing on the firmly established fact that alcohol impairs attention, cognition, and information
processing, proponents of this theory contend a myopia occurs for the intoxicated person who has a
pressing opportunity to engage in disinhibited behavior. This myopia is characterized by a falsely
simplified or myopic vision of reality where the immediate impulses to indulge in disinhibited behavior
become influential because the more remote inhibitions against the indulgence recede into the
background. Access to these inhibitory forces becomes hampered by alcohol-induced narrowing of
attention. Applying this logic to risky sex would suggest that an intoxicated person who felt tempted to
pursue sexual contact with someone would be less attentive to and aware of or internal (e.g. concerns
about disease transmission) or external (e.g. message that condoms are unavailable) cues signaling that he

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or she should resist sexual intercourse. Consequently, attention would narrow to salient cues signaling
sexual advance. Salient external cues might include the partners attractiveness, sexual arousal, and
encouragement. The persons own sexual arousal may constitute the most important internal cue. Such
arousal could be stimulated by scenes of nudity and simulated intercourse, as are depicted in the
Deadpool holiday montage.

F. Supportive scientific evidence Alcohol and sexual aggression experiments: Acute


alcohol intoxication increases mens intentions to in engage in sexually aggressive
behavior.
Laboratory experiments showed that acute alcohol intoxication was capable of exerting a
causal impact indicative of an increased sexual aggressiveness (see reviews by Abbey &
Wegner, 2015; Abbey, Wegner, Woerner, Pegram, & Pierce, 2014; Crane, Godleski, Przybyla,
Schauch, & Testa, 2015; Davis et al., 2014; George & Stoner, 2000). Mens drinking is thought
to contribute to sexual assault perpetration via alcohols acute, pharmacological effect on
physical and sexual aggression (see Crane et al, 2015; Ito et al, 1996 for reviews of this
experimental literature). This acute effect is consistent with the Alcohol Myopia Theory, which
would posit that intoxication narrows attention to more salient, typically instigatory cues (e.g.,
sexual arousal, Simons et al, 2015), while impairing the ability to attend to less salient inhibitory
cues (e.g., womans reluctance). In experiments using eroticized written depictions of sexual
encounters encounter similar to those depicted in Deadpool men exhibit greater intent to
behave sexually aggressively toward women. In natural drinking settings, pharmacological
effects may be enhanced by alcohol expectancy effects (Abbey, 2011), i.e., the belief that alcohol
enhances sex (George et al, 2000) and that drinking women are more interested in sex (George et
al, 1995). In addition to making men more likely to behave in sexually aggressive ways, acute
alcohol intoxication also lowers womens intentions and potential effectiveness at resisting
sexual aggression (Norris citations needed here).

G. Supportive scientific evidence Alcohol and sexual perception experiments: The


presence of alcohol leads people to infer sexual intent in others.
Because sexual behavior is typically preceded by social perceptions, we examined post-drinking
perceptions of sexual intent. I developed third-person text vignettes depicting dating interactions (George
et al., 1988; George et al., 1995; George et al. 1997). Consistent with alcohol expectancy theory,
participants perceived drinking women as more sexually interested and willing to engage in intercourse
than nondrinking counterparts. That is, when all other contextual factors were held constant, people
perceived someone as more sexual based merely on the knowledge that the person had been drinking.
Likewise, women perceived themselves as more sexual when projecting into a second-person (this is
you) vignette depicting consumption of alcoholic versus nonalcoholic beverages (Davis et al, 2010).
This finding from the vignette paradigm alcohol is perceived as a cue signaling sexual intent was later
corroborated using qualitative methods with focus groups (Lindgren et al, 2009b) and with one-on-one
interviews (Koo et al, in press). The finding also generalized to live dyadic encounters: After being led to
believe they were consuming either alcoholic or nonalcoholic drinks, men rated an alcohol-drinking or
non- drinking co-participant on sexual disinhibition and then viewed sexual slides with the co-participant.
These slides depicted scenes of semi-nudity, nudity, and sexual intercourse, similar to scenes depicted in
Deadpool. Men rated drinking female co-participants as more sexually disinhibited than nondrinking
female co-participants. Furthermore, co-participant drinking heightened erotica viewing directly and

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indirectly (via perceived sexual disinhibition). These findings indicated that post-drinking sexual
perceptions about others transcend cognition and generalize to how one behaves toward others.

H. Supportive scientific evidence Erotica-induced drinking: Exposure to sexual content


can increase drinking.
Erotica-induced drinking: In research on the sexuality-alcohol association, the prototypic
procedure has been to manipulate alcohol and then measure sexual responsiveness. This arrangement
assumes a unidirectional causal pathway: alcohol affects sexuality. In the real world, it is most likely that
the pathway is bidirectional and that sexual excitation can influence alcohol consumption. However, very
little is known scientifically about this reverse relationship: What are the effects of sexual excitation on
drinking? In one study, we found that exposure to erotic slides depicting nudity and intercourse such as
the simulated intercourse depicted in Deadpool enhanced ad libitum wine consumption (George,
Phillips, & Skinner, 1988a). We also examined the prospective implication of the deviance disavowal
hypothesis that subjects should experience increased motivation to drink alcohol if they anticipate an
impending opportunity to indulge in deviant erotica. Deviance was operationalized with still photographic
slides depicting intercourse between couples using props indicative of sexual-violence and
sadomasochism, similar to the strap-on-wearing [Happy Womens Rights Day] scene in Deadpool.
Support for this hypothesis was evident only among individuals who scored high on the expectancy that
alcohol disinhibits behavior. This data established that a person's tendency to exploit the alcohol excuse
is determined by the need for an excuse and it is moderated by alcohol expectancies. This study
demonstrated that believers in alcohol's disinhibitory powers may strategically drink more in anticipation
of an opportunity to exploit that excuse by indulging in deviant-erotic content such as the
sadomasochistic scenes depicted in Deadpool.
This reverse causation idea may be especially pertinent for men who have pre-existing
proclivities toward being sexually aggressive. Conceivably such men experience alcohol as a stage-setting
accompaniment for sexually aggressive proclivities they are already motivated to enact. At the extreme,
such a pattern further coheres the reverse causation argument whereby sexually aggressive intent
increases alcohol consumption. It has been demonstrated that acute alcohol intoxication can exacerbate
these pre-existing sexually aggressive proclivities, such that intoxicated men with these characteristics are
more likely than sober men and men without such tendencies to perpetrate sexual assault (Abbey et al.,
2014).

I. Case Facts and Documents Considered


1. The Complaint
2. Utah statute 32B-1-502 Purpose--Application to other laws
3. Utah statute 32B-1-504 General requirements on attire and conduct
4. Margaret Hardie Deposition and Exhibits 1-5
5. Robert Hansen Deposition
6. Sean Cannon Deposition and Exhibit 1
7. Brad Bullock Deposition and Exhibit 1
8. Nina McDermott Deposition and Exhibit 1
9. Randall Miller Deposition and Exhibits 1-8
10. Plaintiff's Reponses to Defendants' Interrogatories, Requests for Admissions, and Requests for
Production
11. Plaintiffs Amended Responses To Defendants' Interrogatories, Requests For Admissions, And
Requests For Production

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J. Scientific Papers Cited and Referenced as Background


Abbey, A., & Wegner, R. (2015). Using Experimental Paradigms to Examine Alcohols Role in
Mens Sexual Aggression Opportunities and Challenges in Proxy Development. Violence
Against Women, 21, 975-996.
Abbey, A., Jacques-Tiura, A. J., & LeBreton, J. M. (2011). Risk factors for sexual aggression in
young men: An expansion of the Confluence Model. Aggressive Behavior, 37, 450-464.
Abbey, A., Wegner, R., Woerner, J., Pegram, S. E., & Pierce, J. (2014). Review of survey and
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communication, sexual goals, and students' transition to college: Implications for sexual
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Violence, 26, 2716-2734.

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UTAH STATE BUREAU OF INVESTIGATION


O OFFICER REPORT
Incident: IU4775477 Page: 1 of 2
Report: R12573660 Case: 16INV0142
DETAILS
Activity Codes: 872.1-Covert Investigation
Location: 677 South 200 West, Salt Lake City - Brewvies (CL01041)
Case Disposition: Other Service
Occurred on: 02/26/2016 At: 22:30
Occurred to: 02/27/2016 At: 00:30
Officer Activity on: 02/26/2016 At: 22:30
Officer Activity to: 02/27/2016 At: 00:30

NARRATIVE
Supplemental Report -

Agent Sean Cannon


Case #16INV0142
Covert Operation
Location - Brewvies 677 South 200 West, Salt Lake City, Utah (CL01041)

Synopsis -

February 26, 2016, Agents with the State Bureau of Investigation conducted a Covert operation in the Salt Lake City area. During
the operation, we checked on a complaint at Brewvies. The complaint stated that Brewvies was showing a movie called "Deadpool".
The complainant stated that the movie had full frontal nudity of both genders and was very raunchy amid the bloody violence.

Details:

On February 26, 2016, at approximately 1800 hours, I met with Agent B. Bullock and Agent J. Williams at the State Bureau of
Investigations office located at 5500 West Amelia Earhart Dr. #100 in Salt Lake City. We started a Covert operation of local licensee
in the Salt Lake City area. During this operation, we went to Brewvies (CL01041) located at 677 South 200 West, Salt Lake City.

Reason for visit:

Agents were informed of a complaint at Brewvies. I was told that the complaint came through the Department of Alcohol Beverage
of Control (DABC) by email. The complainant stated that Brewvies was showing the movie "Deadpool" which had full frontal nudity
of both sexes.

The other agents and I that went to the movie "Deadpool" had all seen the movie beforehand of their own free will prior to knowing
of the complaint and knew of the possible scenes the complainant was talking about.

Visit at Brewvies:

We arrived to Brewvies at 2210 hours (10:10 hours) for the 10:30 late night showing. We watched as patrons ordered beer and
food before entering into the theater. We sat down and noticed about 40 to 50 patrons were in the theater with us with about half
with alcoholic beverages.

The movie started normally and got to the point were the main character - Wade Wilson played by actor Ryan Reynolds gets into a
relationship with a female character - Vanessa played by actress Morena Baccarin. During this time of the movie, Vanessa and
Wade have implied sexual contact during numerous holidays. An example of this is during "International Women's Day" Vanessa
looks to be sodomizing Wade in their bed. Later in the movie, Wade gets into a fight with another character - Ajax played by Ed
Skrein. During the fight, Wade's clothing comes off. Wade shows full frontal nudity during the fight scene. Later there is a short
scene of Wade that showed him simulating him masturbating in his bed with a stuff animal (Unicorn). Then again later in the
movie, Wade goes to a strip club to talk to Vanessa. During the visit, there is full frontal nudity of women dancing in the foreground
and background of the shots during this portion of the movie.

Utah State Bureau of Investigation

DABC 000001
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UTAH STATE BUREAU OF INVESTIGATION


O OFFICER REPORT
Incident: IU4775477 Page: 2 of 2
Report: R12573660 Case: 16INV0142

NARRATIVE
I had seen the movie twice before. During the Brewvies showing, I did not noticed any difference in the movie "Deadpool" to
remove or obscure the nudity and /or implied sex acts.

The movie ended at approximately 0015 to 0030 hours (12:15 to 12:30 a.m.).

Movie Information:

Name - Deadpool (2016)


Rated - R
Time 1 hr 48 mins
-

End of report.

REPORTING OFFICER
Officer's Name Badge Signature Printed On
Cannon, Sean 209 03/09/2016 At: 16:05

ASSISTING OFFICERS
Agency Officer's Name Badge
Utah State Bureau of Investigation Bullock, Bradley 297
Utah State Bureau of Investigation Williams, Jared 422

SUPERVISOR
Agency Officer's Name Badge
Utah State Bureau of Investigation Holt, Mike 222

Utah State Bureau of Investigation

DABC 000002
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UTAH STATE BUREAU OF INVESTIGATION


C CRIME REPORT
Incident: IU3979966 Page: 1 of 2
Report: R10395653 Case: 16INV0142
OFFENSES
ALCOHOL COMPLIANCE (9999IS.3)
Weapon/Force: None
Motive: Alcohol Related

Activity Codes: 872.1-Covert Investigation


Loc. of Crime: 677 South 200 West Salt Lake City, UT 84101
Case Disposition: Other Service
Occurred on: 02/26/2016 At: 22:30
Occurred to: 02/27/2016 At: 00:30
Officer Activity on: 02/26/2016 At: 22:30
Officer Activity to: 02/27/2016 At: 00:30

NARRATIVE
SYNOPSIS

This report details the investigation into a complaint against Brewvies located at 677 South 200 West in Salt Lake City.

NARRATIVE

On 02/23/2016, I was requested to investigate a complaint that was received by our office from Margaret Hardie at DABC against
Brewvies located at 677 South 200 West in Salt Lake City. The nature of the complaint indicated that Brewvies was showing a film
at their location on their premises entitled "Deadpool." The complaint claimed that the film contained numerous scenes of a sexual
nature that might be in violation of Utah Alcoholic Beverage Control Act - General Provisions Section. I put together an op plan to
investigate this complaint for Friday 02/26/2016. I looked up the movie on the website IMDB.com (Internet movie data base online)
. The MPAA rating for "Deadpool" is "R" for " strong violence and language throughout, sexual content and graphic nudity." Under
the "Parent's Guide" section for the movie on IMDB.com it lists a "content advisory" explaining various Sex/Nudity shown in the film
which is extensive. Some of the descriptions from this advisory are used in explaining what I personally viewed.

RESULTS OF INVESTIGATION

On 02/26/2016, Agents Cannon and Williams and I entered Brewvies located at 677 South 200 West in Salt Lake City. We were
advised by a male working the front check-in desk that the 8 pm showing of "Deadpool" was sold out, so we purchased tickets to
the 10:30 pm showing of "Deadpool." Our ID's were checked to verify that we were 21 years old. At about 10:15 pm, we went to
the bar serving area, and I ordered a Bud Light in a glass. I was served that, and I took the beer into the theater area where the
movie was being shown in Theater #1. We sat down and watched the movie "Deadpool" to verify the scenes indicated in the
complaint. Throughout the movie, I observed the following that are deemed violations of 32B-1-504 (General Requirements On
Attire and Conduct of the General Provisions of the Utah Alcoholic Beverage Control Act):

1) 32B-1-504(7)(a)(i) - The following attire and conduct on premises or at an event regulated by the commission under this title are
considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: showing a film, still picture,
electronic reproduction, or other visual reproduction depicting: an act or simulated act of: sexual intercourse -

The main character (male) in the film is shown numerous times engaging in acts or simulated acts of sexual intercourse with the
female counterpart during a holiday themed sex-montage. They "are shown having sex while nude (we see the woman sitting on
the man's groin in bed, rocking on his lap as he fondles her bare breasts and she gasps). He is then shown behind her while she's
on her hands and knees" engaged in sexual intercourse or simulated sexual intercourse.

2) 32B-1-504(7)(a)(ii) - The following attire and conduct on premises or at an event regulated by the commission under this title
are considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: showing a film, still picture,
electronic reproduction, or other visual reproduction depicting: an act or simulated act of: masturbation -

The main character in the film is shown on his back under bed sheets briefly engaged in masturbation or simulated masturbation
using a stuffed unicorn toy.

3) 32B-1-504(7)(a)(iii) - The following attire and conduct on premises or at an event regulated by the commission under this title
are considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: showing a film, still picture,
electronic reproduction, or other visual reproduction depicting: an act or simulated act of: sodomy -

Utah State Bureau of Investigation

DABC 000003
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UTAH STATE BUREAU OF INVESTIGATION


C CRIME REPORT
Incident: IU3979966 Page: 2 of 2
Report: R10395653 Case: 16INV0142

NARRATIVE
During the holiday themed sex montage, it shows the main character (male) nude "on his hands and knees on a bed while a
woman wearing a leather bikini (with an strap-on penis that isn't shown) has her groin area pressed against the man's posterior;
the camera then cuts to his face, he is sweating and grimacing as she says to relax before the scene ends. She bends down to him
and says "Happy Women's Rights Day" during the sodomy or simulated sodomy scene.

4) 32B-1-504(7)(b) - The following attire and conduct on premises or at an event regulated by the commission under this title are
considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: showing a film, still picture,
electronic reproduction, or other visual reproduction depicting: a person being touched, caressed, or fondled on the breast,
buttocks, anus, or genitals -

As stated above, during the holiday themed sex montage, The male and female main characters "are shown having sex while nude
(we see the woman sitting on the man's groin in bed, rocking on his lap as he fondles her bare breasts...)"

5) 32B-1-504(7)(c) - The following attire and conduct on premises or at an event regulated by the commission under this title are
considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: showing a film, still picture,
electronic reproduction, or other visual reproduction depicting: a scene wherein an artificial device or inanimate object is employed
to depict, or a drawing is employed to portray, an act prohibited by this section; in this case, masturbation -

In the final credits, a drawing of the main character (male) is shown "as he rides on the back of a unicorn, he rubs its horn briefly
until the horn shoots outs rainbows (simulating orgasm)." The tail of the unicorn raises slowly as he rubs the horn simulating
arousal until the horn shoots out the rainbows.

6) 32B-1-504(7)(d) - The following attire and conduct on premises or at an event regulated by the commission under this title are
considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited: showing a film, still picture,
electronic reproduction, or other visual reproduction depicting: a scene wherein a person displays the genitals or anus -

"There is a long fight scene in which the main character (male) is naked. His penis is visible three times in this scene." Also, there is
a scene at a strip club. "A fully nude (female) stripper is shown for about three seconds (her breasts and pubic mound are visible
but hard to see due to the dimly-lit environment)."

CONCLUSIONS

All these scenes were observed by me and are accurate in the descriptions above. This film containing these scenes were shown in
their entirety on the premises of Brewvies during normal business hours.

No further information

REPORTING OFFICER
Officer's Name Badge Signature Printed On
Bullock, Bradley 297 03/09/2016 At: 15:04

ASSISTING OFFICERS
Agency Officer's Name Badge
Utah State Bureau of Investigation Cannon, Sean 209
Utah State Bureau of Investigation Williams, Jared 422

SUPERVISOR
Agency Officer's Name Badge
Utah State Bureau of Investigation Holt, Mike 222

Utah State Bureau of Investigation

DABC 000004
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DABC 000005
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EXHIBIT A
Counter Expert Report of
Dr. William H. George

Defendants Appendix 0019


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Points of Rebuttal to Expert Report of Daniel Linz, Ph.D.


RE: Cinema Pub L.L.C., d/b/a Brewvies, v. Petilos et al.
By William H. George, Ph.D.

The purpose of this report is to rebut the expert witness report submitted by Dr. Daniel Linz in
the Cinema Pub L.L.C., d/b/a Brewvies, v. Petilos et al. case. In the following narrative, I will comment
on statements and opinions expressed in Dr. Linzs report that are subject to criticism and dispute.
I note in his opening statement (paragraph 1), Dr. Linz describes his expertise as follows My
research focus has been on the effects of sexually oriented and violent entertainment upon human
psychology and behavior and the effects of sexually related expression on adults and communities. I
have been qualified as an expert witness on the question of alleged secondary effects from adult
entertainment and the effects of such entertainment on human behavior. Absent from this broad
statement of expertise is any indication of expertise concerning alcohol and its effects, which is a focal
aspect of the case under consideration. Furthermore, the more narrow expertise about alcohols
combined effects with exposure to sexually explicit content the focus of my expertise is also absent
from Dr. Linzs description of his expertise. Therefore, Dr. Linz expertise is not applicable to aspects of
the case pertaining to alcohols effects combined with sexually explicit content on sexually aggressive or
risky behaviors or on precursors of such behaviors (such as, sexual perception, sexual arousal, and
sexual intent).
In paragraph #5 of his report, Dr. Linz states that there is no reliable evidence that secondary
effects are associated with serving alcohol while viewing films containing sexually explicit or sexually
suggestive content. This erroneous opinion is presented as an undisputed and universally accepted
assertion. In fact, this issue is not settled science. There is scholarship by criminologists, lawyers,
psychologists, and sociologists arguing both on theoretical and empirical grounds that negative
secondary effects occur. For example, a commentary published in the Journal of Sex Research by
criminologists criticized both the logic and methods employed in a Linz publication, which had
concluded that secondary effects were not evident (McCleary & Meeker, 2006). Furthermore, more
recent studies exist showing evidence of negative secondary effects in sexually oriented businesses
(SOBs) generally (McCord & Tewksbury, 2013; McCleary & Weinstein, 2009) and in alcohol serving
ones in particular (Jarrett, et al., 2012). Thus, this contention by Dr. Linz that there is no reliable
evidence for negative secondary effects is simply not fully supported by the available scholarship. A
direct implication of Dr. Linzs opinion is that adverse effects never occur. That is, the undergirding
assertion of Dr. Linzs opinion is that joint exposure to nudity or sexually explicit imagery and alcohol
intoxication never contributes to, fosters, or causes adverse secondary effects (inclusive of sexual
aggressiveness and sexual risk taking). Contrary to Dr. Linzs opinion, the available scientific evidence
strongly suggests that such effects occur in the real world (Jarrett, et al., 2012; McCord, 2014; McCord
& Tewksbury, 2013; McCleary & Weinstein, 2009; Weinstein & McCleary, 2011).
In paragraph #5, Dr. Linz also states that this case does not involve the classic adult movie
theater and X-rated materials that were the subject of litigation in the U. S. Supreme Court case Renton
v. Playtime Theater--a case that addressed the secondary effects of adult theaters, and one that does not
pertain to the R-rated mainstream materials at issue in the present case. Despite the R rating of the film
overall, there are scenes in the film that are comparable to adult film content, such as the simulated
sadomasochistic intercourse scenes, similar to the strap-on-wearing [Happy Womens Rights Day]
scene in Deadpool. Also, the scenes in the holiday montage as well as those in the strip bar show full
nudity of womens breasts. The best way to evaluate whether Deadpool contains sexual explicit imagery
similar to that found in SOBs is to observe the images at issue. To assist the Court in this endeavor,

Defendants Appendix 0020


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attached as Exhibit 1, are 10 still shots of clips from Deadpool; these constitute the images for which
DABC cited Brewvies in this case. Brewvies has also shown other movies that contain graphic sexual
content that would be similar to what would be seen at adult theaters and SOBs operating in Utah (see
Exhibits 2, 3, and 4 containing sexually explicit scenes from other movies Don Jon, Fifty Shades of
Gray, and Zack and Miri Make a Porno, respectively shown at Brewvies).
In paragraph #6, Dr. Linz states that he has undertaken an exhaustive research project in regard
to secondary effects of adult businesses many of which combine alcohol service with sexually
oriented entertainment. My research in the area of secondary effects has included attempts to compile
and critically analyze most if not all of the secondary effects studies which are referred to in case
law. Dr. Linzs exhaustive research project did not include the two more recent studies cited above,
which were not available at the time his research was conducted (Jarrett, et al., 2012; McCord &
Tewksbury, 2013). Thus, if Dr. Linz had conducted a more recent literature search, he would have found
contradictory scientific evidence, which would necessitate tempering his claim of an exhaustive review
of pertinent evidence. Therefore, Dr. Linzs contention in Paragraph #5 that there is no reliable
evidence that secondary effects are associated with serving alcohol while viewing films containing
sexually explicit or sexually suggestive content is simply not true as demonstrated by available (1)
more recent peer-reviewed criminological studies of SOBs proving otherwise by demonstrating
secondary effects on crime (McCord & Tewksbury, 2013; McCleary & Weinstein, 2009), particularly in
alcohol serving SOBs (Jarrett, et al., 2012); and (2) relevant and widely accepted experimental studies
proving otherwise by demonstrating that alcohol combined with exposure to sexually explicit content
affects responses and outcomes considered constituent elements (e.g., being aroused and willing to
engage in risky or aggressive sexual activities) of behavior patterns indicative of adverse secondary
effects (e.g., as sexual assault and soliciting prostitution). In sum, contrary to Dr. Linz contention, there
is evidence from criminological studies that does show adverse secondary effects and the evidence from
basic laboratory experiments is congruent with the occurrence of such effects.
In paragraphs #7, #8, and #9, Dr. Linz describes his project where he analyzed 120 studies both in
regard to the conclusions that they reached and for what I generally refer to as methodological rigor,
stating that he wanted to insure that if studies reached a certain conclusion (regardless of whether they
found or did not find secondary effects being associated with adult entertainment businesses) that I
could have some confidence in those results as being trustworthy and reliable. Dr. Linz reports
presenting this project at a 2000 conference and publishing it in 2001. In his summary of the
conclusions, he indicates that all studies showing adverse secondary effects are so methodologically
flawed as to be deemed not credible; whereas all studies he judges as methodologically credible
demonstrate either no negative secondary effects associated with adult businesses or a reversal of the
presumed negative effects. It strains credulity that all studies consistent with his opinion are judged as
methodologically credible and that all studies inconsistent with his opinion are judged as not
methodologically credible; and suggests the likelihood of confirmatory bias operating explicitly or
implicitly in arriving at his judgments about the credibility of the studies.
In paragraph #10, Dr. Linz states that this published study has been cited by federal courts as
casting doubt on the idea that adult businesses are associated with adverse secondary effects. I will
testify that recently, this published article was cited by the U. S. Court of Appeals, Tenth Circuit in the
case: Doctor Johns, Inc. v. City of Roy, No. 04-4270. The court suggests that it might cast doubt on the
Citys evidence and rationale. However, Dr. Linz fails to note that this very same published study was
deemed not to cast such doubt, in subsequent legal action: The court noted that (A)t first glance, the
article does appear to cast doubt on secondary effects studies generally in stating that its authors
reviewed 107 relevant studies. However, the article only analyzes the 10 most frequently cited studies

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by municipalities, and the City of Roy only relies on 4 of those 10 studies. Consequently, it is difficult to
see how the article casts doubt on the other 14 studies relied on by the City, let alone the other 7 reports
and the many cases cited by the ordinance. The court also pointed out that (o)ther courts have rejected
Dr. Linz's argument, even when submitted with additional evidence, as insufficient to cast doubt on a
city's rationale for its ordinance and concluding that (F)inally, the Linz article is insufficient because it
does not address many of the stated objectives the ordinance is intended to accomplish (Dr. Johns v.
Whalen, 542 F.3d 787, 793 (10th Cir. 2008)). Overall, when such subsequent court opinions are
considered in concert with published criticisms (McCleary & Meeker, 2006) of his work (noted earlier
and discussed in more detail below), Dr. Linzs assertion that his own work casts doubt on the idea that
adult businesses are associated with adverse secondary effects does not withstand careful scrutiny on
either legal or scientific grounds.
In Paragraph #11, Dr. Linz states that a statewide study of Ohio cities also shows a lack of
correlation between the presence of liquor-serving establishments featuring nude or semi-nude dancing
and crime. By specifying crime as the outcome i.e., dependent variable of interest in this study, Dr.
Linz implicitly asserts that criminal activity is the only adverse secondary effect to consider in
evaluating the effects of alcohol when combined with viewing images containing nudity or sexual
content. This narrow specification creates significant problems that pose threats to the validity of Dr.
Linzs conclusion that secondary negative effects do not occur.
a. Not all crimes are reported to authorities. Therefore, criminal activity indicative of negative
secondary effects that does not get reported would not appear in Dr. Linzs analyses. Yet
these unreported crimes have a serious and significant negative impact: they affect victims
and their families; and the awareness of unreported crimes affects feelings of safety and
security by community members, thereby constituting adverse secondary effects.
b. It is well established that among the crimes that go unreported, sexual assault is a leading
offense, so much so that is has been dubbed like domestic violence as a hidden crime
(Parrot & Bechhofer, 1991). Therefore, sexually assaultive behavior that has been
consciously or unconsciously stimulated by exposure to nudity and simulated intercourse,
such as depicted in Deadpool, would be underreported and thus less likely to surface in the
crime statistics relied on by Dr. Linz.
c. If alcohol is involved in a sexual assault, then the likelihood that the victim will report or
even acknowledge the assault is diminished (Cohn et al. 2013). Thus, an alcohol-involved or
alcohol-facilitated sexual assault occurring in the aftermath of viewing sexually explicit
images like those shown in Deadpool or other movies containing explicit sexual content
would be even less likely to be reported to authorities than a non-alcohol-involved assault.
d. Choosing crime as an indicator of adverse effects necessitates that the researcher choose a
metric to operationalize crime in the study design and data analyses. According to the
aforementioned article by criminologists McCleary and Meeker, there is no single gold-
standard metric for operationalizing crime. Also, the metric chosen by Dr. Linz CFSs, i.e.,
calls for service does not enjoy consensus among criminologists and is subject to important
criticisms. In evaluating one of Linzs published papers, these criminologists opened their
critique by stating We disagree not only with the Linz et al. finding, but also with the logical
adequacy of their conclusion. Their finding is a methodological artifact, in our opinion, and
their conclusion is a fallacy (McCleary and Meeker, 2006, page 194). McCleary and Meeker
go on to describe two specific threats to statistical conclusion validity that apply to Linz
work and then go on to note that (M)odern criminologists do not use CFSs to measure crime
or crime risk pointing out that (S)ince Linz et al. are not criminologists, they were unaware

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of this convention and its rationale (McCleary and Meeker, 2006, page 195). They then
conclude by stating the following:
These threats to statistical-conclusion validity, in our opinion, are poorly
understood outside criminology. We do not endorse other aspects of the Linz et
al. quasi-experimental design, however. Furthermore, although we used only
one of several statistical results to illustrate the consequences of uncontrolled
threats to statistical-conclusion validity, our point applies to all statistical
results reported by Linz et al. (McCleary and Meeker, 2006, page 195-196)
e. It is worth emphasizing that these criticisms of Dr. Linzs work are in a published peer-
reviewed commentary. Thus, these are not simply un-vetted tendentious opinions; they are
conclusions from bona fide criminologists, conclusions that were then vetted by third-party
scientific gate-keepers including the Journals Editor and perhaps additional independent
reviewers evaluating the substance and veracity of these criticisms of Dr. Linzs work.
In paragraph #22, Dr. Linz states I will also testify that I do not agree that the aggravating
effects of alcohol have been corroborated by laboratory studies conducted by psychologist William H.
George of the University of Washington, Seattle, the leading authority on the potentially dishibiting [sic]
effects of alcohol on sexual perception and aggression. I humbly concur with his assessment that I am
the leading authority It is worth noting that there is an inherent contradiction between, on one hand,
characterizing me as the leading authority on the potentially dishibiting [sic] effects of alcohol on
sexual perception and aggression and, on other hand, dismissing the relevance and import of my
opinion on matters pertaining precisely to disinhibiting effects of alcohol on sexual perception and
aggression.
It is important to note Dr. Linzs choice of phrasing in paragraph # 22, the aggravating effects
of alcohol. This phrasing tacitly asserts that there exist effects that are available to be aggravated by
alcohol. Clearly, the effects referred to in this phrasing are the consequential effects of exposure to
nudity, explicit sexual content, and depictions of sexual intercourse on sexual aggressiveness, effects
that can then presumably be exacerbated by the presence and consumption of alcoholic beverages. Dr.
Linz thus implies that the existence of aggravating effects in the real world is well established and that
he simply disagrees with the assertion that extant alcohol experiments corroborate those real world
effects. This interpretation of Dr. Linzs aggravating effects phrasing in paragraph #22 highlights two
points that merit being brought into bold relief.
First, it is significant to stress that Dr. Linzs implication that such real world effects exist
contradicts his prior statements that such effects do not exist. The existence of such internally
contradictory assertions on such an important matter, which constitutes a central focus of the Brewvies
case may be unintentional, reflecting imprecision in his argument and narrative. Otherwise, the
contradiction may reflect Dr. Linzs awareness either implicit (best case) or explicit (worst case,
indicative of being deliberately disingenuous) awareness that real world effects exist; but coupled with
an overt conviction to refute the existence of such effects regardless of empirical evidence.
Second, that the scientific evidence corroborates real world effects is incontrovertible given the
sheer weight of the highly replicated empirical data showing that under controlled experimental
conditions alcohol combined with exposure to sexually explicit material fosters increases in sexual
aggressiveness (see reviews by Abbey & Wegner, 2015; Abbey, Wegner, Woerner, Pegram, & Pierce,
2014; Crane, Godleski, Przybyla, Schauch, & Testa, 2015; Davis et al., 2014; George & Stoner, 2000)
and sexual risk taking (see reviews by George & Stoner, 2000; Hendershot & George, 2007; Rehm et
al., 2012; Scott-Sheldon et al., 2016). While Dr. Linz may disagree on the existence of real world effects
(as he seems to), the fact the scientific experimental evidence corroborates i.e., is congruent with and

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explains any such A-causes-B effects that might exist in the real world is irrefutable: Where A = the
presence or consumption of alcohol and B = indices of sexual risk taking, sexual aggressiveness, sexual
arousal, or sexual perception that are interpretable as constituent elements of behavior patterns
classifiable as sexuality-related adverse secondary effects.
In paragraph #23, Dr. Linz states that I conclude that the results of the studies cannot be
generalized to the real world setting entertainment settings such as Brewvies. There are two elements of
the statement that warrant rebuttal. Do my results generalize to the real world generically and do my
results generalize to Brewvies specifically? In sum, my results and those of many other scientists show a
causal relationship between (1) acute alcohol intoxication and general aggressiveness against women,
(e.g., Leonard & Quigley, 1999; Richardson, 1981) (2) acute alcohol intoxication and sexual
aggressiveness against women (e.g. Marx et al., 1997; 1999), and (3) the alcohol-sexual-content mixture
and subsequent sexual aggressiveness (e.g., Davis et al., 2006; Norris et al., 2002). These basic scientific
facts are indisputable, having been verified in repeated laboratory replications and further substantiated
in reviews of multiple experiments (see reviews by Abbey & Wegner, 2015; Abbey, et al., 2014; Crane,
et al., 2015; Davis et al., 2014; George & Stoner, 2000). Thus, the internal validity (see response #9
below) of these findings is well established. Furthermore, and, importantly, other scientists conducting
field studies have replicated some of these same laboratory effects in real world settings such as
barrooms (e.g., Graham et al., 2014; Parks, 2000; Parks & Miller, 1997). Such findings from field
studies constitute external validity of these basic causal patterns demonstrated in the laboratory. Finally,
it is important to note that the only reasons scientists were ever inspired to conduct controlled laboratory
experiments on these behavioral patterns e.g., violence after drinking alcohol in the first place, is
because of their seemingly natural and abundant co-occurrence in the real world. The laboratory
experiments sought simply to determine whether this co-occurrence of alcohol and violence was causal
or merely correlational; and they proved it was causal. Field experiments (e.g., Graham et al., 2014;
Parks, 2000; Parks & Miller, 1997) completed the epistemological loop by showing that the relationship
initially observed in the real world and then validated and explained in the laboratory, subsequently
generalized back to the real world; but now with a clear theoretical explanation. Thus, to advance the
argument that laboratory experimentation has no bearing on the real world not only subverts the whole
premise of social psychological experimentation, but it is stunningly disingenuous, especially from Dr.
Linz who started his career conducting and publishing controlled laboratory experiments (e.g., Linz,
Donnerstein, & Penrod, 1988). In the introductory section of that 1988 paper, Dr. Linz states Many
citizens and policymakers are becoming alarmed about the fact young people now have access to movies
that appear to be extremely violent and sexually degrading to women as part of the preamble to the
controlled laboratory experiment he then describes. Obviously he conducted that experiment (and many
others, e.g., Dexter et al., 1997; Jansma et al., 1997; Linz, 1989; Mulac et al., 2002; Mullin & Linz,
1995) based on the presumption consistent with his training and with the epistemological creed of
social psychology experimentation that findings from the experiment would have bearing on those real
world patterns and concerns and would inform their proposed undergirding theoretical explanations.
Otherwise, why conduct and report the experiment? However, since that time, Dr. Linz seems to have
forsaken that presumption and now embraces the opposite view that controlled laboratory experiments
have absolutely no bearing on or relevance to the real world phenomena that inspired their formulation
and enactment.
About the second question: Do my results apply to social clubs where there is alcohol and where
sexually explicit content is displayed specifically? Given the internal validity of my findings, given
replication of these basic causal patterns in other laboratories (see reviews by Abbey & Wegner, 2015;
Abbey, et al., 2014; Crane, et al., 2015; Davis et al., 2014; George & Stoner, 2000; Hendershot &

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George, 2007; Rehm et al., 2012; Scott-Sheldon et al., 2016), given their external validity demonstrated
in field experiments (e.g., Graham et al., 2014; Parks, 2000; Parks & Miller, 1997), and given the
support demonstrated for the theoretical explanations (e.g., Davis et al., 2007), the critical question
becomes what is it about Brewvies that moderates, mutes, or attenuates the basic science relationships
demonstrated in my experiments? Whatever moderating factors might be identified, they do not
invalidate the basic finding that alcohol combined with erotica is capable of exerting a causal impact on
behavior indicative of negative secondary effects. And, Brewvies provides the essential ingredients for
such effects to unfold: alcohol service and exposure to nudity and simulated sexual intercourse. In fact,
the types of intercourse images from Deadpool (see Exhibit 1) and others movies shown at Brewvies
(see Exhibits 2, 3, and 4 containing sexually explicit scenes from Don Jon, Fifty Shades of Gray, and
Zack and Miri Make a Porno, respectively) are comparable to the erotic stimuli used in some of my
research studies.
In paragraph 24, Dr. Linz stated: I have reasoned that Dr. Georges work illustrates one of the
most serious problems with laboratory experimentation. This problem, generally speaking, is known as
the problem of external validity. It relates to the generalizability of experimental findings to the real
world. While there are many reasons for an experiment to lack generalizability, one of the most common
ways generalizability is jeopardized is when there is an interaction between the testing situation and the
experimental stimulus. When there is such an interaction, the effect of interest is produced only in the
laboratory not in the real world. Behaviors might only occur in the laboratory because of the types of
people recruited for the experiment, or because a set of cues given inadvertently to subjects by the
setting or experimenter, or because a procedure or set of stimulus materials invented by the experimenter
causes subjects to behave in ways they would not in the world outside the laboratory. In addition, even if
the behavior in question is not caused by an interaction between the testing situation and experimental
stimulus, we are still left to wonder if the outcome or dependent variable in the study is analogous to the
real world phenomenon of interest.
Dr. Linzs critique about the external validity of my research forms the crux of his contention
that my research has no relevance to negative secondary effects in the real world and thus that my
research is not pertinent to the Brewvies case. Therefore, this facet of his criticism external validity
warrants careful consideration. First, it is important to distinguish internal and external validity.
Internal validity refers to how well an experiment is done, especially whether it avoids confounding
(more than one possible independent variable [cause] acting at the same time). The less chance for
confounding in a study, the higher its internal validity is. All considerations of external validity are
predicated on the assertion that internal validity is already well established. It is important to emphasize
the Dr. Linz does not challenge the internal validity of my experiments. Likewise it is important to
emphasize that, having survived peer-review evaluations at multiple high impact and influential
scientific journals (e.g., Journal of Abnormal Psychology, Archives of Sex Research, Psychology of
Violence, AIDS and Behavior; Journal of Sex Research), the findings of my experiments are understood
to have high internal validity; and thus judged to be truthful experimental effects. This means that the
causal relationships demonstrated in my experiments are genuine and not due to artificialities resulting
from spurious or confounding influences.
On the other hand, external validity is the validity of generalized (causal) inferences in
scientific research, usually based on experiments as experimental validity. In other words, it is the extent
to which the results of a study can be generalized to other situations and to other people. On the more
general external validity point about the correspondence between lab and real-world data that
forms the basis of Dr. Linzs critique, there has been much debate especially with regard to aggressive
behavior (e.g., Anderson & Bushman, 1997; Berkowitz & Donnerstein, 1982; Ferguson, 2007; Giancola

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& Chermack, 1998; Tedeschi & Quigley, 1996). The central objection to laboratory aggression
paradigms is that they measure behaviors that are artificial, unrealistic, and lack correspondence to real
world sexual aggression. This criticism essentially favors external over internal validity and more
specifically champions mundane realism, or the extent to which events in the laboratory setting are
likely to be experienced in participants everyday lives. In response, scholars (e.g., Anderson &
Bushman, 1997; Berkowitz & Donnerstein, 1982; Mook, 1983) have repeatedly and convincingly
argued that the validity of laboratory aggression paradigms rests not in their mundane realism but,
rather, in their ability to engage and impact participants (i.e., experimental realism) and invoke
psychological processes that occur in real life (i.e., psychological realism). Thus, external validity
ultimately rests on the solidity of experimental realism and psychological realism, not the mundane
realism that Dr. Linz seems to emphasize in his comments about the similarity between Brewvies and
the laboratory conditions. It is these psychological realism processes that I seek to generalize and not the
specific features of a given setting, method, or manipulation. Overall, among psychological scientists,
the dated truism that laboratory behavior has low external validity has been largely vanquished
empirically. This has been exemplified in meta-analyses of aggression and is perhaps best exemplified
by an extensive analysis of effects sizes from over 38 lab-vs.-field study pairs across a wide range of
behaviors (Anderson, Lindsay, & Bushman, 1999). Ironically, it is worth noting that one of the scientists
contributing early to the argument defending the merit of laboratory findings and the assertion that they
have substantial external validity beyond superficial considerations of mundane realism is Dr. Edward
Donnerstein, one of Dr. Linzs mentors and collaborators.
The external validity criticism in paragraph 24 is also soundly rebutted by the fact that the basic
causal patterns shown in my experiments are not unique to my laboratory; but have been replicated in
other laboratories (see reviews by Abbey & Wegner, 2015; Abbey, et al., 2014; Crane, et al., 2015;
Davis et al., 2014; George & Stoner, 2000; Hendershot & George, 2007; Rehm et al., 2012; Scott-
Sheldon et al., 2016); have had their external validity demonstrated in field experiments (e.g., Graham et
al., 2014; MacDonald et al, 2000; Parks, 2000; Parks & Miller, 1997;), and have had support
demonstrated for the theoretical explanations (e.g., Davis et al., 2007). With respect to the Brewvies
case, even if there were limits to the external validity of a research finding, the internally valid fact
remains that alcohol and erotica exposure can generate adverse outcomes. Because Brewvies provides
those conditions, adverse outcomes are likely.
In paragraph 24, Dr. Linz stated I will testify that Dr. Georges studies suffer from all of these
external validity problems. There are many interactions between testing situation and experimental
stimulus that operate in Dr. Georges studies that serve to limit his findings to the social situation he
himself has produced in the laboratory. This renders the findings inapplicable to the real world situation
of alcoholic beverage consumption in an adult nightclub that features topless or nude entertainment.
Even if Dr. George's studies were useful for understanding alcohol consumption outside the laboratory
they are still not applicable because the current case does not involve an adult business. As noted
earlier the basic relationships evident in the findings from my research are not limited to my laboratory,
as they have been replicated in other laboratories and in real world field studies. Also, as noted above,
the internally valid fact remains that alcohol and erotica exposure can generate adverse outcomes.
Because Brewies provides those conditions, adverse outcomes are likely.
In paragraph 26, Dr. Linz states I will testify that I have specifically noted the following
external validity problems with Dr. Georges studies of subjects drinking alcohol while viewing erotica:
(a) the use of college-age males who consume more than two drinks per day as subjects; This
phenomenon was probably the result of subject participation bias: The students have been recruited with
a procedure in which they must first be informed of the possibility that they will be given alcohol and

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permitted at that point to excuse themselves from participation. Actually, this characteristic of my
studies make the findings more applicable because men who are regular drinkers are precisely the
individuals that would seek to watch Deadpool at Brewvies rather than at a theater that does not serve
alcohol. Also, it is important to note that contrary to Dr. Linzs assumption, the majority of the
participants in my experimental studies published since 2000 are not college students. They have been
recruited from the urban communities of Buffalo New York and Seattle Washington and represent much
greater diversity than college student only samples.
In paragraph 27, Dr. Linz stated The men who eventually end up taking part in the study
presumably underwent informed consent procedures. This means that they were informed of the fact that
they may be asked to consume alcohol during the course of the experiment. Proper procedure then
permits them to withdraw their participation if this was a problem. We do not know how many men
declined to participate at that stage. The substantive point of this criticism is not entirely clear. Dr. Linz
seems to be implying that the informed consent procedures which are of course required in research
resulted in a self-selecting dropout rate among participants such that the sample was not fully
representative of the range of people in the real world. It should be noted that men were being paid $15
an hour to get intoxicated and watch or read sexually explicit content. The dropout rate was extremely
low, less than 1%.
In paragraph 28, Dr. Linz stated We may assume however that those who did not wish to drink
on school premises or who had study or other obligations may have declined participation in the study.
(b) The showing of sexually explicit content, including scenes depicting intercourse, fellatio, and
cunnilingus; and (c) the absence of real world inhibitors such as admonishments from friends not to get
too drunk, warning from authority figures or at the very least lack of tacit approval by authority figures
for excessive drinking, or even the lack of money to drink as much as one wished. Again, the
substantive point of this criticism is not entirely clear and perhaps Dr. Linz is again implying that the
informed consent procedure resulted in a self-selecting dropout rate among participants such that the
sample was not fully representative of the range of people in the real world. Again, presuming that this
is what Dr. Linz meant, three points bear repeating. First, men were being paid $15 an hour to get
intoxicated and watch or read sexually explicit content and the dropout rate was less than 1%. Second,
the men who would hypothetically decline to participate in my studies according to Dr. Linzs criteria
are not the men that would go to Brewvies to watch Deadpool. The men who would seek participation
in my studies are precisely the sort of men that would want to go to Brewvies and drink alcohol while
watching sexually explicit imagery. Again the participants in my alcohol administration studies over the
last 15 years are between the ages of 21 and 35; they are regular drinkers; and they are mostly employed
and not-in-school.
In paragraph #29, Dr. Linz states four summary opinions, each of which is rebutted by the above
commentary. Contrary to Dr. Linzs statement that (A) there is no reliable evidence that negative
secondary effects are associated with serving alcohol while viewing films containing sexually explicit or
sexually suggestive content much less with R-rated mainstream films, there is reliable evidence of
adverse secondary effects (e.g., Jarrett, et al., 2012; McCord & Tewksbury, 2013; McCleary &
Weinstein, 2009). Contrary to Dr. Linzs statement that (B) this case does not involve the classic adult
movie theater and X-rated materials that were the subject of litigation in the U. S. Supreme Court case
Renton v. Playtime Theater, a case that addressed the secondary effects of adult theaters, and one that
does not pertain to the R-rated mainstream materials at issue in the present case, many of the scenes
depicted in Deadpool see Exhibit 1 are comparable to what might be seen in adult theaters and SOBs
in Utah. Contrary to Dr. Linzs statement that (C) there is no evidence from peer reviewed studies
conducted by me and my associates that secondary effects are greater in areas surrounding alcohol

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serving establishments that combine sex related entertainment than in areas surrounding alcohol
establishments that do not carry such fare, those null results or non-findings have been criticized so
severely as to be judged a methodological artifact and a fallacy (McCleary and Meeker, 2006, page
194). Furthermore, Dr. Linzs legal opinions based on his work have been judged as insufficient to cast
doubt on a city's rationale for its ordinance. Dr. Linzs assertion that his own work casts doubt on the
idea that adult businesses are associated with adverse secondary effects does not withstand careful
scrutiny on either legal or scientific grounds. Contrary to Dr. Linzs statement that (D) finding from my
studies are not relevant to the facts of this case in so far as these studies employ sexually explicit
materials rather than mainstream R-rated movies, particular scenes in Deadpool and others movies
shown at Brewvies (see Exhibits 2, 3, and 4 containing sexually explicit scenes from other movies
Don Jon, Fifty Shades of Gray, and Zack and Miri Make a Porno, respectively shown at Brewvies) are
comparable to the erotic stimuli used in some of my studies.
In summary, contrary to Dr. Linzs report and his concluding opinions, my research experiments
are highly relevant to the Brewvies case because (1) they show that alcohol is capable of exerting a
causal impact indicative of an increased sexual aggressiveness and sexual risk taking; and (2) many of
the responses and outcomes demonstrated in alcohol experiments can be considered constituent elements
(e.g., being aroused and willing to engage in risky or aggressive sexual activities) of behavior patterns
reflective of adverse secondary effects (e.g., as sexual assault and soliciting prostitution). Thus, given
the internal validity of my findings, the replication of these basic causal patterns in other laboratories,
their external validity demonstrated in field experiments, and the support demonstrated for the
explanatory theoretical mechanisms, a clear implication of my research is that adverse secondary effects
are likely in communities in and around establishments providing their clientele with both alcohol and
exposure to sexually explicit imagery such as has been shown at Brewvies.

Scientific Papers Cited and Referenced as Background


Abbey, A., & Wegner, R. (2015). Using Experimental Paradigms to Examine Alcohols Role in Mens
Sexual Aggression Opportunities and Challenges in Proxy Development. Violence against
Women, 21, 975-996.
Abbey, A., Wegner, R., Woerner, J., Pegram, S. E., & Pierce, J. (2014). Review of survey and
experimental research that examines the relationship between alcohol consumption and mens
sexual aggression perpetration. Trauma, Violence, & Abuse, 15, 265-282.
Anderson, C. A., Lindsay, J. J., & Bushman, B. J. (1999). Research in the psychological laboratory truth
or triviality?. Current Directions in Psychological Science, 8, 3-9.
Anderson, C., & Bushman, B. (1997). External validity of trivial experiments: The case of laboratory
aggression. Review of General Psychology, 1, 19-41.
Berkowitz, L., & Donnerstein, E. (1982). External validity is more than skin deep: Some answers to
criticism of laboratory experiments. American Psychologist, 37, 245-257.
Crane, C. A., Godleski, S. A., Przybyla, S. M., Schlauch, R. C., & Testa, M. (2015). The Proximal
Effects of Acute Alcohol Consumption on Male-to-Female Aggression A Meta-Analytic Review
of the Experimental Literature. Trauma, Violence, & Abuse, 17, 520-531.
Cohn, A. M., Zinzow, H. M., Resnick, H. S., & Kilpatrick, D. G. (2013). Correlates of reasons for not
reporting rape to police results from a national telephone household probability sample of women

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with forcible or drug-or-alcohol facilitated/incapacitated rape. Journal of Interpersonal Violence,


28, 455-473.
Crowe, L. C., & George, W. H. (1989). Alcohol and human sexuality: Review and integration.
Psychological Bulletin, 105, 374-386.
Davis, K. C., Hendershot, C. S., George, W. H., Norris, J., & Heiman, J. R. (2007). Alcohols effects on
sexual decision making: An integration of alcohol myopia and individual differences. Journal of
Studies on Alcohol & Drugs, 68, 843-851.
Davis, K. C., Norris, J., George, W. H., Martell, J., & Heiman, R. J. (2006b). Mens likelihood of sexual
aggression: The influence of alcohol, sexual arousal, and violent pornography. Aggressive
Behavior, 32, 581-589.
Davis, K. C., Parrott, D. J., George, W. H., Tharp, A. L., Hall, G. N., Swartout, K. M., & Stappenbeck C.
A., (2014). Studying sexual aggression in the laboratory: A critical review. Psychology of
Violence, 4, 462-476.
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EXHIBIT 1
Deadpool

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EXHIBIT 2
Don Jon

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EXHIBIT 3
Fifty Shades of Gray

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EXHIBIT 4
Zack and Miri Make a Porno

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Case 2:16-cv-00318-DN Document 57-1 Filed 03/06/17 Page 85 of 330

BEFORE THE
UTAH ALCOHOLIC BEVERAGE CONTROL GOMMISSION

DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL, NOTICE OF AGENCY ACTION


and
COMPLAINANT OF INFORMAL ADJUDICATION
and
V NOTICE OF HEARING

CINEMA PUB LLC dba BREWVIES

Case Number 2016-566-L


RESPONDENT

Complainant, Department of Alcoholic Beverage Control (hereafter DABC), through its Presiding Officer, Nina
R. McDermott, alleges as follows:

1. The DABC is a duly authorized department of the State of Utah.

2. Jurisdiction for this action is based upon Utah Administrative Procedures Act, U.C.A.63G4-201, Utah
Alcoholic Beverage Control Act 328-3-204 and R81-1-6 & -7, ABC Commission Rules of Procedure for
Disciplinary Action.

3. This Notice of Agency Action is also a notice of an "informal" adjudication under U.G.A. 63G4-202 & -5.

4. The law enforcement report(s) pertaining to the alleged violations in this Notice of Agency Action is
attached.

5. CINEMA PUB LLC dba BREWVIES (hereafter "BRE\/V|ES"), located at 677 S 200 W , SALT LAKE
CITY, UT 84101, is a DABC club licensee pursuant to U.C-A. 328-5, having been granted said license on
September 29, 2009.

6. The DABC violation file regarding BREWVIES reflects the following violation hstory: No prior violations
found.

7. The DABC alleges BREWVIES and named respondent/s have committed the following violation(s) of the
Utah alcoholic beverage control laws:

DABC 000011
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Case 2:16-cv-00318-DN Document 57-1 Filed 03/06/17 Page 86 of 330

Count l:

On or about February 23, 2016, Brewvies, a social club, showed a film, electronic
reproduction, or other visual reproduction depicting: (1) an act or simulated act of sodomy,
bestiality, or oral copulation, and (2) a scene wherein a person displayed their genitals in
violation of Utah Code Section 328-1-504 (7) (a) and (d).

WHEREFORE, the DABC seeks an order of the Utah Alcoholic Beverage Control Commission invoking the
following penalties:

Count l: As to BRE\WIES, a 10day license suspension up to a revocation of its club


license and/or a $1,000 TO $25,000 fine.

The department also seeks administrative hearing costs.

NOTIGE OF HEARING

A pre-hearing conference on this matter will be held at the DABC, 1625South 900West, Salt Lake City,
Utah 84104on April 20,2016 at 10:004M, or sooner upon request of respondents, to encourage
settlement, clarify issues, simplify evidence, or expedite the proceedings. A representative of the licensee
and any named employees of the licensee are expected to be in attendance at the pre-hearing conference.

lf the case is not settled, the date, time and place of any informal or formal evidentiary hearing will be
scheduled at the time of the pre-hearing conference. A respondent may request an adjudicative hearing to
determine whether the alleged violations occurred, and if so, the penalties to be imposed. An adjudicative
hearing is conducted informally in accordance with Commission Rule R81-1-7 and Utah Code Sections
63G4-202 and 203 unless the presiding officer converts the matter to a formal proceeding pursuant to
R81-1-7(2)(c)(iii) or (iv). The purpose of the hearing is to allow the parties to testiff, present evidence and
comment on the issues. Failure of a party to attend or participate in any scheduled adjudicative hearing
may result in that party being held in default and shall constitute an admission of the allegations conlained
herein and shall waive the respondent's right to contest the allegations, and the right to the hearing.

Sheila Page, Assistant Utah Attorney General, will represent the DABC at all proceedings in this matter
Any questions concerning the merits of the case or discussions concerning possible settlement should be
directed to Ms. Page, 160 East 300 South, Salt Lake City, Utah 84114 or contact her at (80f ) 366-0353.

Page 2

DABC 000012
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Dated and mailed this 31st day of March,2A16.

Nina R. McDermott
Director of Licensing and Complance
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL
1625 South 900 West
Salt Lake City, Utah 84104
(801) e77-6800

Page 3

DABC 000013
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Gertified Mail

This is to certify that I mailed, by certified mail, a copy of the foregoing "Notice of Agency Action and of
lnformalAdjudication and Notice of Hearing" on this 31st day of March, 2016 to:

BREWVIES
PO BOX 572068
MURRAY, UT 84157

Jrt-

Page 4

DABC 000014
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

CINEMA PUB, L.L.C.,


d/b/a BREWVIES,

Plaintiff,

vs.
Case No. 2:16-cv-00318-DN
Honorable David Nuffer
Magistrate: Evelyn J. Furse

SALVADOR D. PETILOS, Director, CADE MEIER,


Deputy Director; NINA MCDERMOTT, Director
of Compliance, Licensing Enforcement, Utah
Department of Alcoholic Beverage Control,
in their official capacities; JOHN T. NIELSON,
Chairman; JEFFREY WRIGHT; KATHLEEN MCCONKIE
COLLINWOOD; OLIVIA VELA AGRAZ; STEVEN B.
BATEMAN; S. NEAL BERUBE; AMANDA SMITH, Members,
Utah Alcoholic Beverage Control Commission, in
their official capacities,

Defendants.
____________________________________________________

DEPOSITION OF

WILLIAM H. GEORGE, Ph.D.

TAKEN ON
FRIDAY, DECEMBER 16, 2016
10:50 A.M.

5036 25TH AVENUE NORTHEAST, ROOM 306


SEATTLE, WASHINGTON 98105
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1 APPEARANCES

3 For the Plaintiff:

4 ROSS "ROCKY" C. ANDERSON, ESQUIRE

5 Lewis Hansen

6 Eight East Broadway, Suite 410

7 Salt Lake City, Utah 84111

8 (801) 746-6300

9 (801) 746-6301

10 randerson@lewishansen.com

11

12 For the Defendants:

13 DAVID N. WOLF, ESQUIRE

14 Director of Constitutional Defense

15 Utah Attorney General's Office

16 160 East 300 South, 6th Floor

17 Salt Lake City, Utah 84114

18 (801) 366-0100

19 (801) 366-0101

20 dnwolf@utah.gov

21

22

23

24

25

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1 INDEX

2 Page

4 EXAMINATION BY MR. ANDERSON 6

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 back to me for revision, some of which were not.

2 In some circles in academia they don't

3 count those as peer-reviewed, but the way you

4 phrased the question peer-reviewed literature, I

5 would count them, so in that case I would say total

6 about 165.

7 Q. And if you didn't count that category, the

8 chapters, but if we're talking about peer-reviewed

9 journals, for instance --

10 A. Okay. That's --

11 Q. -- how many peer-reviewed articles in

12 peer-reviewed journals have you published?

13 A. Peer-reviewed journal articles I'm going

14 to -- not having the list in front of me, I would

15 estimate about 100.

16 Q. And how many of those deal with the impact

17 of sexual content combined with consumption of

18 alcohol?

19 A. I don't know offhand. I can --

20 Q. Do any of them?

21 A. -- check. Yeah. Many of them do,

22 beginning with my first peer-reviewed publication in

23 1986. So, from 1986 through 2016 I would guess at

24 least 70; about 70 maybe, yeah.

25 Q. So, there have been 70 articles authored

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1 Q. Well, you referred to scientific

2 experiments, and then addressed the questions

3 relating to violent behavior.

4 Do you see that?

5 A. Yes. But I'm not understanding your

6 question.

7 Q. Okay. Well, you were limiting these

8 questions that were being answered in the scientific

9 experiments to sexually violent behavior.

10 A. In this sentence, yes.

11 Q. Okay. Now, under opinion one toward the

12 bottom of that page you state that, and I quote,

13 "Actual alcohol consumption and the appearance of

14 alcoholic consumption are each capable of exerting a

15 causal impact increasing the likelihood that, when

16 sexual content is provided, sexual outcomes will

17 occur and that these outcomes will intensify."

18 Do you see that?

19 A. I do.

20 Q. You're talking about any alcohol

21 consumption of any amount or does this depend on the

22 amount of alcohol consumed?

23 A. If -- if I'm understanding correctly, both

24 are true. There are experiments in which -- in

25 which that's been demonstrated with any amount

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1 consumed, and there are experiments and what's been

2 demonstrated is what's called a dosage effect, the

3 effect intensifies as the alcohol dosage increases.

4 Q. Okay. At what point would alcohol

5 consumption be expected to have an impact on sexual

6 conduct, either aggression or sexual-risk taking?

7 A. When you say "what point", you're

8 referring to what dosage?

9 Q. Yes.

10 A. What level of blood alcohol concentration?

11 Q. However you want to measure.

12 A. I'm hesitating because in actuality it's a

13 -- it's a complicated question in theory, because it

14 taps into both alcohol expectancy theory and alcohol

15 myopia theory. So, I -- I would give different

16 answers depending on which theoretical lens I'm

17 using.

18 Q. And alcohol myopia theory relates only to

19 the actual consumption of alcohol?

20 A. Correct.

21 Q. Okay. Well, let's talk about the actual

22 consumption.

23 A. Okay.

24 Q. How much alcohol would have to be consumed

25 for it to have an impact, when combined with sexual

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1 content, for that to have an impact on one's sexual

2 conduct, either aggression or risk-taking conduct?

3 A. So, if we're using as our ruler blood

4 alcohol concentration, I have seen those effects

5 from as low as a blood alcohol concentration of .04

6 through the highest of what's been examined in the

7 laboratory, which is .08 -- no, .1.

8 I'm pausing to reflect on whether I've

9 seen it below .04. I don't think so, because in

10 practically all the experiments which have

11 administered alcohol and looked at these types of

12 outcomes, the target -- you dose the participants

13 shooting for a certain blood alcohol level target,

14 and I don't think I've ever seen a target below .04.

15 Q. What kind of alcohol is used in these

16 experiments?

17 A. A range. I've seen experiments reported

18 in which they have used beer, I've seen experiments

19 reported in which they've used wine.

20 Q. You say "they" these are --

21 A. Other experimenters. Their's is --

22 Q. I'm talking about your experiments.

23 A. In my experiments. In my experiments I've

24 used wine. I've used 80-proof vodka mixed with

25 tonic. I've used 100-proof vodka mixed with juice.

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1 I've used Everclear, which is 190 proof,

2 mixed with juice. Everclear, vodka, 100-proof

3 vodka, 80 proof, and wine. I'm trying to think if

4 I've done a -- a beer study. I don't remember. I

5 don't -- I -- I don't think I've published a beer

6 study.

7 Q. Now, how many drinks are normally

8 administered?

9 A. As I said before, the administration is

10 based on a target blood alcohol level. And so how

11 many drinks it takes to get to that target is

12 individualized. So, we weigh you ahead of time, and

13 based on your body weight we -- we keep a standard

14 chart that says how much alcohol of a particular

15 strength it takes someone of your body weight to

16 reach that target BAL in a certain period of time.

17 And so we then take whatever the amount is

18 from the chart, and we evenly distribute it across

19 three cups.

20 Q. And do most of your subjects drink all

21 three cups?

22 A. They all do.

23 Q. They all do. Okay. And do you have the

24 same blood alcohol level target?

25 A. In every experiment --

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1 Q. Yeah.

2 A. -- is that what you're asking?

3 No. It differs. We've used .04, we've

4 used .06, we've used .08, we've used .1.

5 Q. And scientists usually report in terms of

6 results in ranges if there's more than one subject;

7 correct?

8 A. Repeat that question, please.

9 Q. Yeah. How many -- how many subjects would

10 be involved in an experiment?

11 A. That varies from experiment to experiment.

12 On the low -- on the -- on the low end we've

13 reported and published experiments with 64 subjects,

14 on the high end we've conducted and reported

15 experiments with 400.

16 Q. And those would be split in half; half in

17 the control group and half in the group that's

18 consuming alcohol --

19 A. Yeah.

20 Q. -- or expecting to consume alcohol?

21 A. Yeah, depending on the experiment. Yeah.

22 In some experiments there's just two groups; expect

23 to get alcohol and get it, expect to get no alcohol

24 and don't get it. In some experiments that group

25 has a high dose and a low dose, in which case there

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1 are three groups; expect not to get alcohol and

2 don't get it, expect to get alcohol and you get a

3 low dose, expect to get alcohol and you get a high

4 dose.

5 So, there's -- there's a -- there are a

6 variety of different ways in which we have designed

7 those experiments, which vary the dosage, which vary

8 whether or not there's any alcohol there at all, but

9 typically speaking there's an equal number of

10 subjects in each of the groups.

11 Q. And in some of these experiments you not

12 only have them report to you what their tendency or

13 propensity is in terms of risk taking or aggressive

14 sexual conduct, but you'll follow up with them later

15 to see what kind of conduct they've engaged in?

16 A. There are experiments in which we have

17 followed up after we left the lab, because we were

18 curious as to whether or not there was a

19 relationship between -- you might think of it as

20 curiosity about the "does it" question. Out there

21 in the real world, living your life, is there a

22 relationship between your drinking and your sexual

23 behavior, and we get at that through daily diary

24 data.

25 Q. But these are all people who drink?

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1 A. They have to drink to participate in the

2 research.

3 Q. Right.

4 A. Yeah. I'm not understanding.

5 Q. So, they're all --

6 A. Are these all people who regularly in

7 their life are drinkers, is that the question?

8 Q. Yes.

9 A. Yes. Because if you're not a drinker in

10 your regular life you cannot even get into the

11 experiment.

12 Q. And in -- in your follow-up are you asking

13 them how much they've had to drink, and whether

14 they've engaged in sex?

15 A. What we ask them, what we're -- with the

16 alcohol portion were interested in estimating their

17 blood alcohol level. So, in order to know that we

18 need to know how much have they had to drink over

19 how much time, and what their body weight is.

20 And from that we can calculate a breath

21 alcohol estimate. And we then also ask them did you

22 have sex today? Did you use a condom? Yeah.

23 Q. How long do these follow-ups go.

24 A. How long do they go. You mean how many

25 days do we ask them?

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1 Q. Uh-huh.

2 A. Typically 30.

3 Q. But at that point there is no sexual

4 content element to the follow-up; you're not asking

5 them have you been going to pornographic movies, or

6 reading pornography, or that sort of thing?

7 A. I'm pausing because we've asked different

8 questions in different experiments, different

9 follow-up. I think the answer to that is, no, we

10 don't ask them about their exposure to content on

11 that same day.

12 Q. Okay.

13 A. Other than that, the presumption that

14 there's content inherent if they had sex that day.

15 Q. Why is that a presumption?

16 A. Because if you had sex that day, you've

17 been exposed to at least that erotic sexual content

18 of the person you were interacting with.

19 Q. Okay. I was referring more to the kind of

20 sexual content you used in your laboratory

21 experiments.

22 A. No. We don't inquire about that.

23 Q. All right. So, the only time you have

24 tried to measure the impact of a combination of

25 sexual content and the consumption of alcohol is

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1 actors.

2 BY MR. ANDERSON:

3 A. Okay. I would have -- to answer that

4 question, outside the movies that you named as movie

5 titles, I'd have to know which movie titles were the

6 product of each of those directors, because I -- I

7 don't know offhand.

8 Q. Okay. Under Opinion Number 2 on your

9 report on page three you indicate that, "Exposure to

10 sexual content contributes to greater drinking."

11 A. Correct. I see that Opinion Number 2.

12 Q. And you refer there to pornographic

13 depictions of nudity and sexual intercourse.

14 A. Correct.

15 Q. And do you characterize anything that you

16 saw in Deadpool as being a pornographic depiction of

17 nudity or sexual intercourse?

18 A. I have come to learn that the term

19 "pornography" has specific meaning in the legal

20 world. So, I was not having that specific legal

21 definition in mind when I used the adjective

22 "pornographic". So, to answer your question I'm

23 needing to know whether in your use of the term are

24 you meaning the legal definition of pornography or

25 just my descriptive --

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1 Q. Let me cut it short. Do you -- do you

2 believe, based on all of your work in this field,

3 that someone seeing the sexual content in Deadpool,

4 seeing the entire movie, that seeing that sexual

5 content is going to drive them to drink more?

6 A. The sexual content or the entire movie?

7 Q. The entire movie, including the sexual

8 content. I'm not talking about carving out the

9 sexual content like you and your lawyers did. I'm

10 talking about going to the movie --

11 A. I'm sorry.

12 Q. No problem. -- going to the movie and

13 seeing it front to back, including the credits.

14 If you need to take that we can take a

15 quick break.

16 A. No. I'm okay.

17 Do I believe that seeing Deadpool

18 inclusive of its sexual content --

19 Q. Seeing the whole movie.

20 A. -- can lead someone to drink more than

21 they otherwise would if they did not see Deadpool.

22 I believe that to be true. Because my hypothesis

23 that I was pursuing in that particular experiment is

24 that it's an arousal maintenance hypothesis, and if

25 you're feeling positive arousal from seeing

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1 titillating scenes like those in Deadpool, that

2 would motivate you to want to maintain positive

3 arousal by having a drink. That would be the

4 theory.

5 Q. So, you're saying watching Deadpool is

6 going to cause people to drink more?

7 MR. WOLF: Objection; asked and answered.

8 But you can provide the answer again.

9 A. I'm saying that there is a theoretical

10 framework for arguing that exposure to titillating

11 sexual material can motivate one to drink more than

12 if they were not exposed to titillating sexual

13 material.

14 Q. Okay.

15 A. And that's based on particular theoretical

16 framework and it's based on empirical findings in my

17 laboratory.

18 Q. Without qualifying about theoretical

19 frameworks and all the rest, I'm just asking you, in

20 your opinion, would watching Deadpool cause someone

21 to drink more?

22 MR. WOLF: Objection; asked and answered

23 twice.

24 But if you want to answer it for a third

25 time --

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1 MR ANDERSON: He hasn't answered that.

2 THE WOLF: I'm think he has.

3 MR. ANDERSON: I'm just asking for an

4 answer to that question.

5 MR. WOLF: It's the same question you've

6 asked twice previously.

7 But you may answer it again.

8 BY MR. ANDERSON:

9 A. I'm trying to see if I'm missing something

10 in your question, because I've answered --

11 Q. It's really very simple. I'm asking that

12 sitting -- you've seen Deadpool?

13 A. I've seen Deadpool.

14 Q. Took two of your kids?

15 A. Yep.

16 Q. Did you have anything to drink while you

17 were watching it?

18 A. Alcohol was not available in that theatre.

19 Q. No? Okay. Is it your opinion, based on

20 all this work that you've done in this field, that

21 watching Deadpool will drive the viewer to drink

22 more?

23 MR. WOLF: Same objection; asked and

24 answered.

25 A. I would say that it can, yes.

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1 Q. All right. In your Opinion Number 4 on

2 page three of your report, you say, "Sex crimes,

3 (e.g., prostitution) and sexual violence (e.g.,

4 rape) is likely in communities adjacent to

5 businesses providing alcohol and sexual content."

6 Do you see that?

7 A. I do see that.

8 Q. And what kind of sexual content? What do

9 you mean by that?

10 A. I'm referring to, since I'm extrapolating

11 from the science that I and others have done, I'm

12 referring to sexual content that's congruent with

13 the types of stimuli used in those scientific

14 studies. And so those would be content that is --

15 shows nudity, that shows real or simulated sexual

16 intercourse or activity, that may or may not show

17 genitalia, that may or may not be deviant.

18 So, that's what I had in mind here when I

19 say "sexual content".

20 Q. And do you mean by that for any

21 substantial period of time, or could it be just a

22 few seconds in a movie would be enough to cause

23 somebody to engage in prostitution or rape somebody?

24 A. I have no way of specifying how much

25 exposure here. So, I can't really answer that.

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1 Q. All right.

2 COURT REPORTER: Can I just take one

3 second?

4 MR. ANDERSON: Of course.

5 (Whereupon, following a discussion had off

6 the record, Exhibit C was marked for

7 identification.)

8 BY MR. ANDERSON:

9 Q. I show you what's been marked as Exhibit

10 C. Have you seen that document before?

11 A. Hold on. Let me look. I have.

12 Q. So, you're familiar with the fact that the

13 area around Brewvies does not have any diminution;

14 in fact, has had an increase in property values,

15 assessed tax valuation, and also has not had an

16 increase in calls relating to crimes?

17 MR. WOLF: Object to the form of the

18 question; it's compound, it assumes the opinion of

19 Dr. Parker -- or Mr. Parker as fact.

20 Aside from that, you can answer.

21 I also note that it might not be complete.

22 It looks like there's 28 out of 35 pages. Is this

23 the whole report? At the top it says page 28 of 35.

24 And I've only got 25 pages.

25 MR. ANDERSON: Well, I'll give him mine

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1 then.

2 MR. WOLF: That's okay. I don't need

3 another copy. I just thought --

4 MR. ANDERSON: No.

5 MR. WOLF: That's what you put in front of

6 him.

7 THE WITNESS: Mine is 28.

8 MR. WOLF: Ours are the same, but maybe

9 it's complete.

10 MR. ANDERSON: Well, I'll give you mine.

11 Okay. I've substituted Exhibit C because the earlier

12 one appears to have been an incomplete copy.

13 MR. WOLF: Okay. Thank you.

14 BY MR. ANDERSON:

15 Q. You've seen the expert report of Bruce

16 Parker?

17 A. I have skimmed it, yes.

18 Q. All right. And you haven't endeavored to

19 rebut that report?

20 A. It's outside of my expertise.

21 Q. Okay. But within your view of your

22 expertise under Opinion 4 is sex crimes and sexual

23 violence -- sex crimes like prostitution, sexual

24 violence like rape, is likely in communities

25 adjacent to businesses providing alcohol and sexual

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1 content; correct?

2 A. Is that what I said in my report? Yes,

3 I'm reading that along with you.

4 Q. Was that your view?

5 A. Yes. Likelihood, yes.

6 Q. And, again, the sexual content you're

7 talking about is the kind of sexual content you

8 described from your experiments?

9 A. Correct.

10 Q. And what -- what you would anticipate in

11 terms of increase in sex crimes and sexual violence

12 has not occurred in the community adjacent to

13 Brewvies?

14 MR. WOLF: Objection; lacks foundation,

15 calls for speculation.

16 A. I have no basis by which to judge that,

17 given that's it's --

18 Q. Do you ever any --

19 A. -- outside my expertise.

20 Q. -- reason to doubt what -- do you have any

21 reason to doubt what Mr. Parker's written in that

22 report?

23 A. I have no reason not to doubt it, because

24 I don't know this area of expertise, and I don't

25 know the integrity of his credentials to make the

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1 evaluation.

2 Q. Okay. Do you believe that showing movies

3 like Deadpool at Brewvies would, according to your

4 research, cause there to be sex crimes like

5 prostitution, sex violence like rape, likely in the

6 geographic area adjacent to Brewvies?

7 A. Based on my theorizing. Based --

8 Q. Okay. And you're theorizing --

9 A. -- on my own --

10 Q. If -- if what -- if --

11 MR. WOLF: Are you going to let him

12 answer?

13 Q. If what that report sets forth is correct,

14 that would be counter to your theory, would it not?

15 A. I don't -- I can't evaluate the report

16 enough to know that. So, for example, is there a

17 comparison group in this report, where he's

18 comparing what's happened with Brewvies to a

19 comparable residential area that doesn't have

20 Brewvies?

21 Q. There is.

22 A. There is. Okay. And, so, the

23 demonstration is that crime is not higher in one --

24 in the Brewvies neighborhood versus the other, and

25 the presumption is that those two neighborhoods are

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1 equivalent on everything else, beside Brewvies.

2 Q. I'm just asking you. If it's established

3 that there's not a higher crime rate, there's not

4 more prostitution, in fact, there's less, than in

5 other adjacent areas, that would be contrary to your

6 hypothesis that there would be more sex crimes like

7 prostitution and more sex violence such as rape

8 likely in communities adjacent to businesses

9 providing alcohol and sexual content; correct?

10 A. So, now you're taking my fourth opinion,

11 you're framing it as a hypothesis, and you're then

12 saying that one test of the hypothesis is this

13 report provided by Mr. Parker.

14 Q. Yeah. I'm talking about the real world,

15 rather than your hypothesis and your theories.

16 A. Well, I -- I can talk a little bit about

17 the real world by arguing that based on my reading

18 of work by other criminologists, there are other

19 samples out there beside Mr. Parker's that would

20 suggest that there might be an increase --

21 Q. Or -- or --

22 A. -- or not a decrease. So, I guess my --

23 my -- my response would be if you frame my Opinion 4

24 as a hypothesis, I would say that this is one test

25 of the hypothesis. One test of the hypothesis that

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1 doesn't support the hypothesis doesn't necessarily

2 invalidate the hypothesis.

3 Q. Okay. And that could be because this

4 isn't the same kind of sexual content at Brewvies as

5 you utilized in your experiments; true?

6 MR. WOLF: Objection; misstates his prior

7 testimony.

8 A. The question is --

9 Q. Yeah. I asked --

10 A. Sometimes you make statements and then you

11 look at me like you've asked a question.

12 Q. I did ask a question. One explanation for

13 the difference between Mr. Parker's findings and

14 your theory could be that there isn't the same sort

15 of sexual content presented at Brewvies, who was

16 involved in your experiments.

17 A. That's a statement.

18 MR. WOLF: Object to the form of the

19 question.

20 Q. Isn't that true?

21 MR. WOLF: Assumes facts not in evidence,

22 misstates his prior testimony, that the images that

23 he uses in his studies are somehow different than

24 what is shown at Brewvies.

25 Q. You're saying the images you've used in

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1 your experiments are the same as the images --

2 A. No. Because when I did my experiments

3 Brewvies -- Deadpool hadn't been made.

4 Q. I'm not saying that you took them from

5 Deadpool. I'm saying in terms of the -- any effect

6 these images might have, that there's a material

7 difference between anything that's in films shown at

8 Brewvies and the sexual content that you utilized in

9 your experiments; isn't that true?

10 A. No.

11 Q. You think they're the same, you think

12 they're equivalent for purposes of your theorizing?

13 A. If I think of the Exhibits in my report

14 that are -- are from Deadpool. Ant the other --

15 Q. Screen shots.

16 A. Screen shots. And the other screen shots,

17 particularly from Fifty Shades Of Grey, Don Jon and

18 Zach and -- something like that. No, they're --

19 they're equivalent to some of the things I've used

20 in my experiments. And I think that will become

21 apparent once you see some of the things I've used

22 in my experiments.

23 Q. And -- and having seen Deadpool, or parts

24 of Deadpool as many times as you've seen them, you

25 believe that there's content in Deadpool that is so

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1 sexually arousing that it's going to alter people's

2 sexual conduct, either to be more aggressive or

3 taking more risk?

4 A. I view this through the lens of a

5 scientist and experimentalist. And so I would have

6 to finish your sentence, your question, by saying I

7 believe that to be the case compared to the

8 hypothetical control condition of seeing something

9 that doesn't have that content. And if that's your

10 question, my answer is yes.

11 Q. Okay. I direct your attention to the

12 bottom of page three of your report under C.

13 A. Page three under C.

14 Q. The last sentence --

15 A. Oh. Oh. Okay. Okay.

16 Q. The last sentence --

17 A. Gotcha. Gotcha.

18 Q. -- beginning on page three.

19 A. Under opinion 3; is that correct?

20 Q. You don't have C on yours for some reason.

21 A. Oh.

22 COURT REPORTER: Here's the Exhibit. Why

23 don't you use the Exhibit.

24 MR. WOLF: His -- his doesn't have a C on

25 it.

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1 A. So, they're both -- what makes them

2 similar, is that they're both casual --

3 opportunities for casual sex around alcohol with

4 somebody you recently met.

5 Q. Do you go to the movies very often?

6 A. I watch them at home more than I go to the

7 theatre.

8 Q. Would you say that's a rarity, that's

9 something really unusual, coming out of Hollywood?

10 MR. WOLF: Objection; vague as to what do

11 you mean by --

12 A. By "that"?

13 Q. People meeting up and having casual sex

14 after they fall for each other?

15 MR. WOLF: In the movies?

16 MR. ANDERSON: Yeah.

17 BY MR. ANDERSON:

18 A. In the movies. Do I think that's rare in

19 movies? No, I don't think that's rare in movies.

20 Q. But you think that if the people are

21 drinking, and if they see that sort of thing that's

22 no longer rare in movies that men are going to be

23 driven to behave sexually aggressively against --

24 A. Compared to not drinking I would say it

25 probably is higher if they're drinking than not,

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1 yes.

2 Q. Is it because of the drinking or because

3 of watching --

4 A. The combination.

5 Q. -- the movie in combination?

6 A. Combination.

7 Q. And you refer there to experiments, but

8 there's no citation to experiments.

9 A. Yeah. These would be --

10 Q. Do you know what experiments those are --

11 A. Yeah. I believe --

12 Q. -- to which you're referring?

13 A. These -- these are experiments where the

14 lead author is Kelly Davis. And I'm coauthor on

15 many of those experiments. And I can get that list

16 to you. I don't -- did I list any of them back

17 here? Nope. I did not list any of those

18 experiments, but I can -- I can get those to you.

19 (Whereupon, Exhibit D was marked for

20 identification.)

21 MR. ANDERSON: C or D?

22 COURT REPORTER: D.

23 BY MR. ANDERSON:

24 Q. Dr. George, were you asked in this case to

25 evaluate whether the drinking of alcohol and the

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Report of Dr. Daniel Linz

I. Expert qualifications

1. I am currently a professor in the Department of Communication at the


University of California, Santa Barbara. I am a tenured professor and have
been at this position since 1988. I received bachelor degrees in psychology
and sociology from Northern Kentucky University in 1978, and a masters
degree in psychology and sociology and a Ph. D. in psychology from the
University of Wisconsin, Madison. My research focus has been on the
effects of sexually oriented and violent entertainment upon human
psychology and behavior and the effects of sexually related expression on
adults and communities. I have been qualified as an expert witness on the
question of alleged secondary effects from adult entertainment and the
effects of such entertainment on human behavior in numerous federal courts
throughout the United States. No court has found me not qualified as an
expert witness. (I have attached, as Exhibit 1 a list of cases in which I have

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testified).

2. I am also a published author in peer-reviewed journals on these subjects.


My curriculum vitae is attached as Exhibit 2, and accurately reflects my
teaching positions, the honors and awards that I have received, the papers
that I have either authored or co- authored which have been published in
peer-reviewed journals, my professional activities, research grants that I
have received, professional conferences where I have presented various
papers, invited addresses where I have spoken, and public testimony that I
have given.

3. I have been asked by Attorney Janet Conway to express opinions on


secondary effects issues relevant to Cinema Pub, LLC d/b/a Brewvies v.
Petilos, et al. I am being compensated at a rate of $350.00 per hour.

4. I reviewed the following materials regarding the Brewvies v. Petilos


matter including: 1. The Defendants Reponse to Plaintiff's
Interrogatories; 2. The Complaint for Declaratory and Injunctive Relief
filed in U. S. District Court, District of Utah, Central Division; 3. The
Transcript of the Deposition of Nina R. McDermott, Director of
Compliance, Licensing Enforcement, Utah Department of Alcoholic
Beverage Control.

5. I will testify that there is no reliable evidence that negative secondary


effects are associated with serving alcohol while viewing films
containing sexually explicit or sexually suggestive content much less
with R-rated mainstream films. I will testify that contrary to "common
sense notions that any form of nudity coupled with alcohol in a public
place begets undesirable behavior, and that "liquor and sex are an
explosive combination," there is no evidence that secondary effects are
greater in areas surrounding alcohol serving establishments that
combine sex related entertainment than in areas surrounding alcohol
establishments that do not carry such fare. I will testify that, moreover
this case does not involve the classic adult movie theater and X-rated
materials that were the subject of litigation in the U. S. Supreme Court
case Renton v. Playtime Theater--a case that addressed the secondary
effects of adult theaters, and one that does not pertain to the R-rated
mainstream materials at issue in the present case.

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6. I have undertaken an exhaustive research project in regard to secondary


effects of adult businesses many of which combine alcohol service with
sexually oriented entertainment. My research in the area of secondary effects
has included attempts to compile and critically analyze most if not all of the
secondary effects studies which are referred to in case law and which are
generally referred to in preambles to laws which attempt to, in one fashion
or another, regulate and/or license adult entertainment facilities. The
studies included in this analysis have included those cited in the Defendants'
Response to Plaintiff's Interrogatories mentioned above.

7. I initially collected some one hundred and twenty studies, and analyzed
them both in regard to the conclusions that they reached and for what I
generally refer to as methodological rigor. As part of my research, I
wanted to insure that if studies reached a certain conclusion (regardless of
whether they found or did not find secondary effects being associated with
adult entertainment businesses) that I could have some confidence in those
results as being trustworthy and reliable. I therefore undertook, along with
my assistant, (then Ph.D. candidate Bryant Paul), a critical examination of
the methodology or methodologies employed in these various studies in
order to determine whether they met the rudimentary elements of
trustworthiness.

8. We presented our findings in a paper submitted at the Annual Meeting of


the International Communication Association, 2000, with that paper
receiving a Top Three Refereed Papers in Communication Law and Policy
award following peer-review. Our analysis was then subjected to further
peer-review for consideration of publication of what ultimately resulted as
the article in the academic law journal. This journal article is entitled:
Governmental Regulation of Adult Businesses Through Zoning and Anti-
Nudity Ordinances; Debunking the Legal Myth of Negative Secondary
Effects, Paul, et al., Communication Law & Policy, Vol. 6, No. 2, Spring,
2001, pp. 355-391, (hereinafter Paul). This article is attached as Exhibit
3.

9. In the Communication Law and Policy published article we concluded


that with few exceptions, that the validity of the most frequently used studies
is questionable and the methods are seriously and often fatally flawed.
These studies, relied on by communities across the country and the Missouri
legislature, do not adhere to professional standards of inquiry and nearly all
fail to meet the basic assumptions necessary to calculate an error rate. Those

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studies that are credible demonstrate either no negative secondary effects


associated with adult businesses or a reversal of the presumed negative
effects.

10. This published study has been cited by federal courts as casting
doubt on the idea that adult businesses are associated with adverse
secondary effects. I will testify that recently, this published article was
cited by the U. S. Court of Appeals, Tenth Circuit in the case: Doctor
Johns, Inc. v. City of Roy, No. 04-4270. The court suggests that it might
cast doubt on the Citys evidence and rationale.

11. A statewide study of Ohio cities also shows a lack of correlation


between the presence of liquor-serving establishments featuring nude or
semi-nude dancing and crime. The study report has been peer reviewed and
was presented at the 2006 National Communication Association annual
meeting at a research paper session entitled: Top Four Refereed Papers in
Freedom of Expression. This paper is attached as Exhibit 4 and is now
published in a peer reviewed law journal as: Linz, D., Yao, M., & Byrne, S.
(2007) Testing Supreme Court assumptions in California v. La Rue: Is
there justification for prohibiting sexually explicit messages in
establishments that sell liquor? Communication Law Review. 7 (1), 23-53.

12. Our study shows a lack of correlation between the presences of liquor-
serving establishments featuring nude or semi-nude dancing and crime.
Hierarchical regression analysis in Toledo revealed that the presence or
absence of adult cabarets in a given neighborhood did nothing to explain the
presence of crime in that same neighborhood. Similarly, in Columbus, the
addition of alcohol-serving adult cabarets as a factor in our analysis resulted
in zero explanatory power. The work in Dayton revealed a negative
correlation between adult cabarets and incidents of rape, such that the
presence of an alcohol-serving adult entertainment establishment is actually
indicative of fewer rather than more rape events. Finally, in Cleveland, we
found that the addition of alcohol-serving adult cabarets as a factor in this
analysis also added no ability to explain crime incidents.

13. Additional research has been conducted and summarized in a study


entitled: Erotic Dancing, Liquor, and Crime: An Empirical Critique of
Virginia Statute Changes Restricting Liquor Service and Adult
Entertainment by Christopher Seaman and me. This paper has been peer
reviewed and accepted for presentation at the 95th Annual Convention of the

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National Communication Association, November 12-15, 2009 in Chicago.


The paper was awarded the 2009 National Communication Association Top
Scholarship in Freedom of Expression.

14. The study took advantage of the fact that recently the State of Virginia
has changed their statutes regarding the regulation of sexually oriented
businesses with liquor service, ruling that businesses cannot both carry a
mixed beverage license and provide adult entertainment. Virginias statute
changes are ultimately based in the doctrine established by the Supreme
Court that local governments can regulate the time, place, and manner in
which adult entertainment is expressed in order to combat the adverse
secondary effects caused by these businesses.

15. Statutes such as Virginias assume that the presence of liquor service
with adult businesses causes more secondary effects than either alone. This
assumption is tested in Richmond, Virginia, in which the crime at and
around two gentlemens clubs was examined both before and after they
received a mixed beverage license. Crime at and around the adult businesses
was also compared to six non-adult control businesses.

16. The study found no support for the theory that liquor service and adult
entertainment interact to cause unique increases in criminal activity in the
surrounding community, or even that adult entertainment is associated with
increases in crime at all. Crime was found to actually decrease in the period
after the two Gentlemens Clubs received their mixed beverage license, and
instances of crime were more frequent at control areas than in the areas
surrounding the adult business. A copy of this study is attached as Exhibit 5.

17. The City of Ft. Wayne, Indiana Study. This is a study conducted by
Bryant Paul, University of California at Santa Barbara (a professor in the
Department of Telecommunications at Indiana University) and me. It is an
examination of adult cabarets in the City of Ft. Wayne, Indiana, which serve
alcoholic beverages and provide exotic entertainment. The report of this
study received a top award from the United States Department of Justice and
thus has been vetted by peer review for its methodological soundness. This
work was awarded Top Student Paper at the student paper competition at
the conference: Translating Spatial Research Into Practice: The Fifth
Annual International Crime Mapping Research Conference, Sponsored by
the Crime Mapping Research Center, National Institute of Justice, U.S.
Department of Justice. A copy of the award letter is attached. A subsequent

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version of this report authored by Mr. Paul and myself was presented at the
2002 International Communication Association where is was peer-reviewed
and recognized as one of the Top Four Refereed Papers in Communication,
Law and Policy. Using Crime Mapping to Measure the Negative
Secondary Effects of Adult Businesses in Fort Wayne, Indiana: A Quasi-
Experimental Methodology. This paper is attached to this report as Exhibit
6.

18. In this study a 1000 feet circumference surrounding each of eight exotic
dance nightclubs in Fort Wayne was established. Comparison areas were
selected in the city of Fort Wayne and matched to the club areas on the basis
of demographic features associated with crime and commercial property
composition. The number of calls to the police from 1997-2000 in the areas
surrounding the exotic dance nightclubs that served alcohol was compared to
the number of calls found in the matched comparison areas. Our analysis
showed little difference, overall, between the total number of calls to the
police reported in the areas containing the exotic dance nightclubs and the
total number of offenses reported in the comparison areas. We concluded
from these findings that there was no evidence of adverse secondary effects
associated with this form of adult business.

19. A Secondary Effects Study in Charlotte, North Carolina. Also


relevant here, is a study conducted in Charlotte North Carolina which I
undertook with my assistant Bryant Paul and Kenneth C. Land, Jay R.
Williams and Michael E. Ezell of Duke University. This paper is entitled:
An Examination of the Assumption that Adult Businesses are Associated with
Crime in Surrounding Areas: A Secondary Effects Study in Charlotte, North
Carolina. This study sought to determine if a relationship exists between
adult erotic dance clubs in Charlotte, North Carolina that feature topless
dancing and serve alcohol and negative secondary effects in the form of
increased numbers of crimes reported in the areas surrounding the adult
businesses. Specifically, the study addressed the following research
question: Once variables known to be related to crime events suggested by
social disorganization and routine activities theories have been taken into
account we ask: does the presence of an adult business in a localized area
increase the concurrence in space and time of offenders motivated to commit
crimes together with suitable targets for the crimes in the absence of
guardians capable of preventing or deterring the crimes?

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20. For each of 20 businesses, a control site (matched on the basis of


demographic characteristics related to crime risk) was compared for crime
events over the period of three years (1998-2000) using data on crime
incidents reported to the police. We found that the presence of an adult
nightclub does not increase the number of crime incidents reported in
localized areas surrounding the club (defined by circular areas with 500 and
1,000 feet radii) as compared to the number of crime incidents reported in
comparable localized areas that do not contain such an adult business.
Indeed, the analyses imply the opposite, namely, that the nearby areas
surrounding the adult business sites have smaller numbers of reported crime
incidents than do corresponding areas surrounding the three control sites
studied.

21. The report of this study has been published in the peer reviewed
scientific journal Law and Society Review, March 2004. This published
article is attached as Exhibit 7.

22. I will also testify that I do not agree that the aggravating effects of
alcohol have been corroborated by laboratory studies conducted by
psychologist William H. George of the University of Washington,
Seattle, the leading authority on the potentially dishibiting effects of
alcohol on sexual perception and aggression.

23. I will testify that I have extensively reviewed and critiqued Dr.
Georges laboratory studies. I conclude that the results of the studies
cannot be generalized to the real world setting entertainment settings
such as Brewvies.

24. I have reasoned that Dr. Georges work illustrates one of the most
serious problems with laboratory experimentation. This problem, generally
speaking, is known as the problem of external validity. It relates to the
generalizability of experimental findings to the real world. While there are
many reasons for an experiment to lack generalizability, one of the most
common ways generalizability is jeopardized is when there is an interaction
between the testing situation and the experimental stimulus. When there is
such an interaction, the effect of interest is produced only in the laboratory
not in the real world. Behaviors might only occur in the laboratory because
of the types of people recruited for the experiment, or because a set of cues
given inadvertently to subjects by the setting or experimenter, or because a
procedure or set of stimulus materials invented by the experimenter causes

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subjects to behave in ways they would not in the world outside the
laboratory. In addition, even if the behavior in question is not caused by an
interaction between the testing situation and experimental stimulus, we are
still left to wonder if the outcome or dependent variable in the study is
analogous to the real world phenomenon of interest.

25. I will testify that Dr. Georges studies suffer from all of these external
validity problems. There are many interactions between testing situation and
experimental stimulus that operate in Dr. Georges studies that serve to limit
his findings to the social situation he himself has produced in the laboratory.
This renders the findings inapplicable to the real world situation of alcoholic
beverage consumption in an adult nightclub that features topless or nude
entertainment. Even if Dr George's studies were useful for understanding
alcohol consumption outside the laboratory they are still not applicable
because the current case does not involve an adult business.

26. I will testify that I have specifically noted the following external validity
problems with Dr. Georges studies of subjects drinking alcohol while
viewing erotica: (a) the use of college-age males who consume more than
two drinks per day as subjects; This phenomenon was probably the result of
subject participation bias: The students have been recruited with a procedure
in which they must first be informed of the possibility that they will be given
alcohol and permitted at that point to excuse themselves from participation.

27. The men who eventually end up taking part in the study presumably
underwent informed consent procedures. This means that they were
informed of the fact that they may be asked to consume alcohol during the
course of the experiment. Proper procedure then permits them to withdraw
their participation if this was a problem. We do not know how many men
declined to participate at that stage.

28. We may assume however that those who did not wish to drink on school
premises or who had study or other obligations may have declined
participation in the study. (b) The showing of pornography, including scenes
depicting intercourse, fellatio, and cunnilingus; and (c) the absence of real
world inhibitors such as admonishments from friends not to get too drunk,
warning from authority figures or at the very least lack of tacit approval by
authority figures for excessive drinking, or even the lack of money to drink
as much as one wished.

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29. In summary I will testify that:

A. There is no reliable evidence that negative secondary effects are


associated with serving alcohol while viewing films containing sexually
explicit or sexually suggestive content much less with R-rated
mainstream films.

B. This case does not involve the classic adult movie theater and X-rated
materials that were the subject of litigation in the U. S. Supreme Court
case Renton v. Playtime Theater, a case that addressed the secondary
effects of adult theaters, and one that does not pertain to the R-rated
mainstream materials at issue in the present case.

C. There is no evidence from peer reviewed studies conducted by me


and my associates that secondary effects are greater in areas
surrounding alcohol serving establishments that combine sex related
entertainment than in areas surrounding alcohol establishments that do
not carry such fare.

D. Finally, I will testify that I do not agree that the aggravating effects
of alcohol have been corroborated by laboratory studies conducted by
William H. George of the University of Washington, Seattle. Further,
they are not relvant to the facts of this case in so far as these studies
employ sexually explicit materials rather than mainstream R-rated
movies.

Respectfully Submitted,

Daniel Linz, PhD

10-30-2016

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EXHIBIT 1

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22nd Ave. Station, Inc. v. City of Minneapolis, United States District Court, District of
Minnesota, Case No. 06-495

84 Video/Newsstand, Inc., et al v. Thomas Sartini, et al, United States District Court, Northern
District of Ohio, Case No. 1:07 CV 3190
Abilene Retail No. 30, Inc. v. Bd. of Comm'rs of Dickinson Cty., Kan., United States District
Court, District of Kansas, Case No. 2:04 CV 2330

Alameda Books, Inc. v. City of Los Angeles, United States District Court, Central District of
California, Case No. 09-55367

Annex Books, Inc. v. City of Indianapolis, United States District Court, Southern District of
Indiana, 1:03 CV 00918
Daytona Grand, Inc. v. City of Daytona Beach, Fla., United States District Court, Middle
District of Florida, Case No. 6:02 CV 1469

Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cty., United States District
Court, Middle District of Tennessee, Case No. 99-5071

Entm't Prods., Inc. v. Shelby Cty., United States District Court, Western District of Tennessee,
Case No. 08-5494

Giovani Carandola, Ltd, et al. v. Ann Scott Fulton, et al, United States District Court, Middle
District of North Carolina, Case No. 1:01 CV 115

Imaginary Images, Inc. v. Evans, United States District Court, Eastern District of Virginia, Case
No. 2:08 CV 398

J.L. Spoons, Inc. v. Morckel, United States District Court, Northern District of Ohio, Case No.
1:04-CV-00314

Johnson v. County of Los Angeles Fire Dept, United States District Court, Central District of
California, Case No. 93 CV 7589
Kentucky Rest. Association; v. Louisville/Jefferson Cty. Metro Gov't,, United States District
Court, Western District of Kentucky, Case No. 3:01 CV 374

Miller, et al. v. Civil City of South Bend, St. Joseph Superior Court, Indiana, Case Nos. 88-3006
& 88-3244

New Albany DVD, LLC v. City of New Albany, Indiana, United States District Court, Southern
District of Indiana, Case No. 4:04 CV 052

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Nightlife Partners v. City of Beverly Hills, United States District Court, Central District of
California, Case No. 01 CV 01563

Nite Moves Entertainment, Inc. v. City of Boise, United States District Court, District of Idaho,
Case No. 00 CV449

Pennsylvania Pride, Inc. v. Southampton Tp., United States District Court, Middle District of
Pennsylvania, Case No. 3: CV 99-1801
People Theatres of NY, Inc. v. City of N.Y., Supreme Court of New York, County of New York,
New York, Index No. 121080/02

Route 62 Video & Books v. City of Alliance, United States District Court, Northern District of
Ohio, Case No. 5:02 CV 1936

R.V.S., LLC v. City of Rockford, United States District Court, Northern District of Illinois, Case
No. 03 C 50048

Tens Cabaret, et al. v. City of New York, Supreme Court of New York, County of New York,
New York, Index No. 121197/02

VIP of Berlin, LLC v. The Town of Berlin, Connecticut, United States District Court, District of
Connecticut, Case No. 3:06 CV 01811

Washington Retailment, Inc. v. City of Centralia, United States District Court, Western District
of Washington, Case No. C03-5137

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EXHIBIT 2

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CURRICULUM VITAE
October, 2016

DANIEL G. LINZ

Department of Communication
University of California, Santa Barbara
Santa Barbara, California 93106
linz@comm.ucsb.edu

EDUCATION

Degree Earned Institution Year

Bachelor of Science Sociology Northern Kentucky University 1978


Bachelor of Science Psychology Northern Kentucky University 1978
Master of Science Sociology University of Wisconsin-Madison 1981
Doctor of Philosophy Psychology University of Wisconsin-Madison 1985

CURRENT EMPLOYMENT AND PREVIOUS EXPERIENCE

2011-pres. Adjunct Professor, Black Studies Department


University of California, Santa Barbara.

1994-pres. Professor, Department of Communication


University of California, Santa Barbara.

1994-2010 Professor, Law and Society Program


University of California, Santa Barbara.

2005-2008. Graduate Director


Department of Communication
University of California, Santa Barbara.

2002-2003 Assistant Executive Director: Center On Police Practices And


Community (COPPAC)

2000-2002. Director
University of California Santa Barbara Survey Research Center

1994-2000. Program Chair


Law and Society Program
University of California, Santa Barbara.

1990-1994 Associate Professor

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Department of Communication and Law and Society Program


University of California, Santa Barbara.

1990 Visiting professor


Department of Law and International Politics, University of Beijing,
China.

1988-1990 Assistant Professor


Communication Studies Program, University of California, Santa Barbara.

1987-1988 Research Psychologist


Communication Studies Program, University of California, Santa Barbara.

1987-1988 Lecturer
Department of Psychology and the Communication Studies Program,
University of California, Los Angeles.

CURRENT TEACHING AND PAST TEACHING EXPERIENCE

University of California, Santa Barbara, Department of Communication

Comm. 113 Mass Media and the Individual.


Comm. 170 Communication Law.
Comm. 175sx Sex and the Judiciary.
Comm. 194S. The Design and Analysis of Surveys
Comm. 176 Forensic Communication
Comm. 181a,b,c Senior Honors Program

University of California, Santa Barbara, Law and Society Program

Interpreting Socio-legal Research.


Law and Social Science.
Media Law.
Psychology and the Legal System.
Seminar in Speech and Violence.
Juries and Justice.

Graduate Seminars:

Research Methods in Communication.


Applications in Advanced Research Methods.
Law and Policy Issues in Justice and the Mass Media.

University of California, Los Angeles, Department of Psychology

Social Psychology Laboratory.

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Social Psychology and the Law.

University of California, Los Angeles, Communication Studies Program

Mass Media and Aggression Against Women.


Freedom of Communication: Mass Media and the Law.
The Effects of Mass Media.
Communication Theory.

HONORS AND AWARDS

2012 International Communication Association: Top Papers in Intergroup


Communication: Immigration Issues in Applied Contexts. Paper Title: Intergroup
Accommodations in Traffic Stops: Ethnicity, Accent and Extensive Policing.

2011 National Communication Association: Top Paper - Communication and Law.


Paper Title: Indecency in the 21st Century: Revisiting the Assumptions of the
Regulation of Indecent Broadcasting.

2011 International Communication Association, Communication Law & Policy Division:


Best Paper Award. Paper Title: "The Secondary Effects Doctrine Since Alameda: An
Empirical Re-examination of the Justifications for Laws Limiting First Amendment
Protection."

2009 National Communication Association: Top Scholarship in Freedom of Expression.


Paper Title: Erotic Dancing, Liquor, and Crime: An Empirical Critique of Virginia
Statute Changes Restricting Liquor Service and Adult Entertainment.

2007 National Communication Association: Top Freedom of Expression Scholarship.


Paper Title: Evaluating the Potential Secondary Effects of Adult Video/Bookstores in
Indianapolis, IN.

2006 National Communication Association: Top Four Refereed Papers in Freedom of


Expression. Paper Title: Testing Supreme Court Assumptions in California v. la Rue: Is
There Justification for Prohibiting Sexually Explicit Messages in Establishments that Sell
Liquor?

2006 National Communication Association: Top Three Refereed Papers in Mass


Communication. Video game play and the role of frustration: How playing non-violent
video games can lead to aggressive effects.

2006 International Communication Association: Top Three Refereed Papers in Games


and Communication. Paper Title: Sexual Priming, Gender Stereotyping, and Likelihood
to Sexually Harass: Examining the Effects of Playing a Sexually Explicit Video Game.

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2002 International Communication Association: Top Four Refereed Papers in


Communication, Law and Policy. Paper Title: Testing Assumptions Made by the
Supreme Court Concerning the Negative Secondary Effects of Adult Businesses: A
Quasi-Experimental Approach to a First Amendment Issue.

2002 Center for Successful Parenting Award. Recognition of outstanding research in the
area of media violence. Paper Title: Violence in children's television programming:
Assessing the risks.

2000 International Communication Association: Top Three Refereed Papers in


Communication, Law and Policy. Paper Title: Government regulation of adult
businesses through zoning and anti-nudity ordinances: Debunking the legal myth of
negative secondary effects.

1999 National Communication Association: Top Three Refereed Papers in Mass


Communication Division. Paper Title: Race and the Misrepresentation of Victimization
on Local Television News.

1992 International Communication Association: Top Three Refereed Papers in


Communication Law and Policy. Paper Title: Defining the limits of public tolerance for
sexually explicit and sexually violent materials: A field experiment.

1990-91 UCSB Plous Memorial Award. Presented to an Assistant professor in the college
of Letters and Science "who has demonstrated outstanding performance by creative
action or contribution to the intellectual life of the college community."

1990 International Communication Association. Top Ten Paper in Mass


Communication. Paper Title: Applying social science to film ratings: A shift from what is
considered offensive to what is harmful to children.

1986 Wisconsin Psychological Association Margaret Bernauer Psychology Research


Award. Paper Title: Individual differences in hostility and psychoticism, exposure to
sexual violence in the media and reactions to a rape victim.

1985 First prize: American Psychological Association Division 41 (American


Psychology-Law Society, AP-LS) Dissertation Award. Title: Sexual Violence in the
Media: Effects on Male Viewers and Implications for Society

1985 First prize: American Psychological Association Division 9 (Society for the
Psychological Study of Social Issues, SPSSI) Dissertation Award. Title: Sexual Violence
in the Media: Effects on Male Viewers and Implications for Society.

SCHOLARLY PUBLICATIONS

Seaman C. & Linz, D. (2014). Are Adult Businesses Crime Hotspots? Comparing Adult
Businesses to Other Locations in Three Cities. Journal of Criminology. Volume 2014,

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Article ID 783461, 14 pages http://dx.doi.org/10.1155/2014/783461 Hindawi Publishing


Corporation

Hald, G. M., Seaman, C. & Linz, D. (2013). Sexuality & Pornography. APA Educational
Psychology Handbook. The American Psychological Association (APA).

Malamuth, N.M., Linz, D., & Weber, R. (2013). Chapter 7: The Internet and Aggression:
Motivation, Disinhibitory and Opportunity Aspects. In Yair Amichai-Hamburger, Y.
(Ed.), The Social Net: The Social Psychology of the Internet.

Giles, H., Linz, D., Bonilla, D. & Gomez, M.L. (2013). Police Stops of and Interactions
with Latino and White (Non-Latino) drivers: Extensive Policing and Communication
Accommodation. Communication Monographs.

Byrne, S., Lee, T., Katz, S.J., Linz, D. & McIlrath, M. (2013). Predators, Porn and Peers:
Predicting Parent Underestimation of their Childrens Risky Internet Experiences.
Journal of Computer Mediated Communication.

Linz, D. (2012). Effects of Sexually Oriented Messages on Individuals and Communities:


A History of Challenging Assumptions in the Courtroom. In: Motley, M.T. (Ed.).
Forensic Communication: Application of Communication Science to Courtroom
Litigation. New Jersey, Hampton Press.

Riddle, K., Potter, J.W., Metzger, M., Nabi, R.L., and Linz, D.G. (2011). Beyond
Cultivation: Exploring the Effects of Frequency, Recency, and Vivid Autobiographical
Memories for Violent Media. Media Psychology, 14 (2) 168-191.

Seaman, C. & Linz, D. (2011). Indecency in the 21st Century: Revisiting the
Assumptions Underlying the Regulation of Indecent Broadcasting in Light of Empirical
Evidence. Free Speech Yearbook, Vol. 45, 67-80.

Rudy, R. M. , Popova, L. and Linz, D. G. (2011). Contributions to the Content Analysis


of Gender Roles: An Introduction to a Special Issue. Sex Roles, 64: 151-159.

Seaman, C. & Linz, D. (2010). "The Secondary Effects Doctrine since Alameda: An
Empirical Re-examination of the Justifications for Laws Limiting First Amendment
Protection." Journal of Media Law & Ethics, Volume 2, Numbers 3/4 (Summer/Fall), 192
-214.

Rudy, R. M., Popova, L. & Linz, D. (2010). The Context of Current Content Analysis of
Gender Roles: An Introduction to a Special Issue. Sex Roles, 62: 705720.

Yao, M. Z., Mahood, C. & Linz, D. (2010). Sexual Priming, Gender Stereotyping, and
Likelihood to Sexually Harass: Examining the Effects of Playing a Sexually-Explicit
Video Game. Sex Roles, 62: 7788.

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Byrne, S., Linz, D., & Potter, W. J. (2009). A test of competing cognitive explanations
for the boomerang effect in response to the deliberate disruption of media-induced
aggression. Media Psychology, 12, 1-23.

Linz, D. (2009). Pornography is not addictive and does not lead to violence against
women / Daniel Linz. In: Addiction (Opposing Viewpoints) by Christina Fisanick.
Detroit, MI: Greenhaven Press.

Yao, M. Z. & Linz, D. (2008). Predicting self-protections of online privacy.


CyberPsychology and Behavior. Volume 11, Number 5, 615-617.

Moyer-Guse, E., Giles, H. & Linz, D. (2008). Communication Studies, Overview


Communal Violence. In Lester Kurtz (Ed.) Vol.1 (1) Encyclopedia of Violence Peace &
Conflict. Volumes 1-3, Oxford: Elsevier, 368-379.

Rudy, R. M., & Linz, D. G. (2008). Desensitization. In W. Donsbach (Ed.), The


International Encyclopedia of Communication (Vol. 3, pp. 1211-1213). Oxford, United
Kingdom: Wiley-Blackwell.

Paul, B. & Linz D. G. (2008). The Effects of Exposure to Virtual Child Pornography on
Viewer Cognitions and Attitudes Toward Deviant Sexual Behavior. Communication
Research, 35(1), 3-38.

Linz, D. (2007). Media violence and behavior. In Brian L. Cutler (Ed.), Encyclopedia of
Psychology and Law. Newbury Park, Sage Publications, Inc.

Linz, D. (2007). Pornography, Effects of exposure to. In Brian L. Cutler (Ed.),


Encyclopedia of Psychology and Law. Newbury Park, Sage Publications, Inc.

Linz, D., Yao, M., & Byrne, S. (2007). Testing Supreme Court assumptions in California
v. la Rue: Is there justification for prohibiting sexually explicit messages in
establishments that sell liquor? Communication Law Review. 7(1), 23-53.

Zwarun, L., Linz, D., Metzger, M., & Kunkel, D. (2006). Effects of showing risk in beer
commercials to young drinkers. Journal of Broadcasting & Electronic Media, 50(1),
2006, pp. 5277.

Linz, D., Paul, B. & Yao, M. Z. (2006). Peep Show Establishments, Police Activity,
Public Place and Time: A Study of Secondary Effects in San Diego, California. Journal
of Sex Research, Volume 43, Number 2. 182-193.

Linz, D., Paul, B. & Yao, M. Z. (2006). Peep Show Establishments, Police Activity,
Public Place, and Time: A Response to McCleary and Meeker. Journal of Sex Research,
Volume 43, Number 2. 197-201.

Malamuth, N. Linz, D. and Yao., M. (2005). Aggression and the Internet. In Yair

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Amichai-Hamburger, Y. (Ed.), The social net: The social psychology of the Internet.
163-190.

Linz, D., Land, K., Williams, J. Ezell, M. & Paul, B. (2004). An examination of the
assumption that adult businesses are associated with crime in surrounding areas: A
secondary effects study in Charlotte, North Carolina. Law and Society Review, Volume
38, Number 1, 69-101.

Anderson, C., Berkowitz, Donnerstein, E., Huesmann, L.R., Johnson, J., Linz, D.,
Malamuth, N.M. and Wartella, E. (2003). The influence of media violence on youth.
Psychological Science in the Public Interest, 4 (3), 81-110.

Mulac, A., Jansma, L.G., & Linz, D. (2002). Mens behavior toward women after
viewing sexually explicit films: Degradation makes a difference. Communication
Monographs, 69(4), 311-328.

Dixon, T. & Linz, D. (2002). Television news, prejudicial pretrial publicity and the
depiction of race. Journal of Broadcasting and Electronic Media, 46(1), pp. 112-136.

Wilson, B., Smith, S., Potter, W.J., Kunkel, D., Linz, D., Colvin, C., & Donnerstein, E.
(2002). Violence in children's television programming: Assessing the risks. Journal of
Communication, 52 (1), 5-34.

Linz, D. (2001). Desensitization. In the Encyclopedia of Communication and


Information. Macmillan Reference, New York, NY.

Paul, B., Linz, D. & Shafer, B.J. (2001). Government regulation of adult businesses
through zoning and anti-nudity ordinances: Debunking the legal myth of negative
secondary effects. Communication Law and Policy, 6. 2, 355-391.

Linz, D. (2001). Child Pornography. In: S.O. White, (Ed). Handbook of Law and Social
Science: Youth and Justice. Kluwer Academic/Plenum Press, 79-111.

Dixon, T. & Linz, D. (2000). Race and the misrepresentation of victimization on local
television news. Communication Research, 27, 5, 547-573.

Linz, D., Blumenthal, E., Donnerstein, E., Kunkel, D. Shafer, B.J. & Lichtenstein, A.
(2000). Testing Legal Assumptions Regarding the Effects of Dancer Nudity and
Proximity to Patron on Erotic Expression. Law and Human Behavior, 24, 5, 507-533.

Dixon, T.L. & Linz, D.L. (2000). Overrepresentation and underrepresentation of African
Americans and Latinos as lawbreakers on television news. Journal of Communication,
50, 2, 131-154.

Wilson, B., Linz, D., Federman, J., Smith, S., Paul, B., Nathanson, A., Donnerstein, E. &
Lingsweiler, R. (1999). The Choices and Consequences Evaluation: A Study of Court

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TVs Anti-Violence Curriculum. Center for Communication and Social Policy, Institute
for Social, Behavioral and Economic Research (ISBER), University of California, Santa
Barbara.

Smith, S.L., Wilson, B.J., Kunkel, D., Linz, D., Potter, J., Donnerstein, E. and Colvin, C.
(1998). Violence in Television Programming Overall; University of California, Santa
Barbara Study. In: National Television Violence Study: Volume 3. Sage Publications,
Thousand Oaks, CA.

Wilson, B., Kunkel, D. Linz, D., Potter, J., Donnerstein, E., Smith, S., Blumenthal, E., &
Berry, M. (1998). The nature and context of violence on American television. In
Carlsson & von Feilitzen (Eds.), Children and media violence. Goteborg, Sweden:
UNESCO. (pp. 63-79).

Donnerstein, E., & Linz, D. (1998). Mass media: A general view. In L. Kurtz (Ed).
Encyclopedia of Violence, Peace, and Conflict. New York: Academic Press.

Wilson, B., Donnerstein, E., Linz, D.,, Kunkel, D., Potter, J., Smith, S., Blumenthal, E.,
& Grey, T. (1998). Content analysis of entertainment television: The importance of
context. In J. Hamilton (Ed). Television Violence and Public Policy. Ann Arbor, MI:
University of Michigan Press.

Potter, J., Linz, D., Wilson, B., Donnerstein, E., Kunkel, D., Smith, S., Blumenthal, E., &
Grey, T. (1998). Content analysis of entertainment television: New methodological
developments. In J. Hamilton (Ed). Television Violence and Public Policy. Ann Arbor,
MI: University of Michigan Press.

Wilson, B., Potter, J., Linz, D., Donnerstein, E., Kunkel, D., Smith, S., Blumenthal, E., &
Grey, T. (1998). Content analysis of entertainment television: Results for 1994-95. In J.
Hamilton (Ed). Television Violence and Public Policy. Ann Arbor, MI: University of
Michigan Press.

Kunkel, D., Wilson, B., Potter, J., Linz, D.,, Donnerstein, E., Smith, S., Blumenthal, E.,
& Grey, T. (1998). Content analysis of entertainment television: Implications for public
policy. In J. Hamilton (Ed). Television Violence and Public Policy. Ann Arbor, MI:
University of Michigan Press.

Wilson, B.J., Kunkel, D., Linz, D., Potter, J., Donnerstein, E. Smith, S.L., Blumenthal, E.
& Gray, T. (1998). Violence in Television Programming Overall; University of
California, Santa Barbara Study. In: National Television Violence Study: Volume 2. Sage
Publications, Thousand Oaks, CA, 3-267.

Dexter, H.R., Penrod, S., Linz, D. and Saunders, D. (1997). Attributing responsibility to
female victims after exposure to sexually violent films. Journal of Applied Social
Psychology, 27 (24), 2149-2171.

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Dixon, T. L. & Linz, D. (1997). Obscenity law and rap music: Understanding the effects
of sex, attitudes and beliefs. Journal of Applied Communication Research, 25, 217-241.

Krafka, C., Linz, D., Donnerstein, E.& Penrod, S. (1997). Womens reactions to
sexually aggressive mass media depictions. Violence Against Women, 3,2, 149-181.

Wilson, B.J., Kunkel, D., Linz, D., Potter, J., Donnerstein, E. Smith, S.L., Blumenthal, E.
& Gray, T. (1997). Violence in Television Programming Overall; University of
California, Santa Barbara Study. In: National Television Violence Study: Volume 1. Sage
Publications, Thousand Oaks, CA, 3-267.

Jansma, L., Linz, D., Mulac, A. & Imrich, D. (1997). Mens interactions with women
after viewing sexually explicit films: Does degradation make a difference?
Communication Monographs, 64, 1, March, 1-24.

Malamuth, N., Heavy, C & Linz, D. (1996). The confluence model of sexual aggression:
Combining hostile masculinity and impersonal sex. In Sex offender treatment: Biological
dysfunction, intrapsychic conflict, interpersonal violence, 13-37.

Mullin, C., Imrich, D. & Linz, D. (1996). The impact of acquaintance rape stories and
case-specific pretrial publicity on juror decision making. Communication Research, 23, 1,
100-135.

Mullin, C & Linz, D. (1995). Desensitization and resensitization to sexualized violence:


The effects of exposure to sexually violent films on judgments of domestic violence
victims. Journal of Personality and Social Psychology, 69, 3. 449-459.

Kunkel, D., Wilson, B., Donnerstein, E., Linz, D., Smith, S., Gray, T., Blumenthal, E. &
Potter, J. (1995). Measuring television violence: The importance of context. Journal of
Broadcasting and Electronic Media, 39, 2, 284-291.

Malamuth, N., Linz, D., & Heavy, C., Barnes, G. & Acker, M. (1995). Using the
confluence model of sexual aggression to predict mens conflict with women: A ten year
follow-up study. Journal of Personality and Social Psychology, 69, 2, 353-369.

Donnerstein, E. & Linz, D. (1995). The Mass Media: A Role in Injury Causation and
Prevention. Adolescent Medicine, 6, 2, 271-284.

Imrich, D. Mullin, C. & Linz, D. (1995). Measuring the Extent of Pretrial Publicity in
Major American Newspapers: A Content Analysis. Journal of Communication, 45, 3,
94-117.

Linz, D., E. Donnerstein, K. Land, P. McCall, B.J. Shafer, & A. Graesner. (1995).
Measuring community standards for sex and violence: An empirical challenge to
assumptions in obscenity law. Law and Society Review, 29, 1, 127-168.

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Donnerstein, E. & Linz, D. (1995) Media. In J.Q. Wilson & J. Petersilia (Eds). Crime:
Twenty-eight leading experts look at the most pressing problem of our time. Institute for
Contemporary Studies, 237-266.

Donnerstein, E., Wilson B.J. & Linz, D. (1995). Mass media violence and film ratings:
Redressing shortcomings in the current system. In: Proceedings of the House of
Delegates, 143rd Annual Meeting. Chicago, Ill: American Medical Association, 78-89.

Donnerstein, E. & Linz, D. (1994). Sexual violence in the mass media. In S. Oskamp
and M. Costanzo (Eds). Violence and the law. Sage Publications, Newbury Park, CA, 9-
36.

Linz, D. & Donnerstein, E. (1994). Sex and Violence in slasher films: A reinterpretation.
Journal of Broadcasting and Electronic Media, 38, 2, 243-246.

Linz, D. & Malamuth, N.M. (1993). Communication Concepts 5: Pornography. In S.


Chaffee (Ed.) Communication Concepts Series, Sage Publications, Newbury Park, CA.

Malamuth, N. M., Heavey, C.L. & Linz, D. (1993). Predicting mens antisocial behavior
against women: The interaction model of sexual aggression. In Hall, G. C. N., R.
Hirschman, J. Graham & M. Zaragoza (Eds.) Sexual Aggression: Issues in etiology,
assessment and treatment. Washington, D.C.: Hemisphere, 63-97.

Linz, D. & Donnerstein, E. (Sept. 1992). Research can help us explain violence and
pornography. The Chronicle of Higher Education, 39, (6) A33-34.

Wilson, B.J., Linz, D., E. Donnerstein & H. Stipp (1992). The impact of social issue
television programming on attitudes toward rape. Human Communication Research, 19,
(2) 179-208.

Donnerstein, E., Wilson, B. J., & Linz, D. (1992). On the regulation of broadcast
indecency to protect children. Journal of Broadcasting and Electronic Media. 36 (2)
111-117.

Linz, D., Wilson, B.J. & Donnerstein, E. (1992). Sexual violence in the mass media:
Legal solutions, warnings, and mitigation through education. The Journal of Social
Issues, 48, 1, 145-172.

Linz, D. & Malamuth, N. & Beckett, C. (1992). Civil Liberties and Research on the
Effects of Pornography. In P. Suedfeld and P. Tetlock (Eds.), Psychology and Social
Policy. New York: Hemisphere, 149-162.

Linz, D. & Penrod, S. (1991). Exploring the First and Sixth Amendments: Pretrial
Publicity and Jury Decision-making. In Kagehiro, D. K., & Laufer, W.S. (Eds.).
Handbook of Psychology and Law. New York: Springer-Verlag.

10

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Linz, D., Donnerstein, E., Land, K., McCall, P., Scott, J., Klein, L. J., Shafer, B.J. &
Lance, L. (1991). Estimating community tolerance for obscenity: The use of social
science evidence. Public Opinion Quarterly, Spring, 80-112.

Linz, D. & Donnerstein, E. (1990). The role of social scientists in policy decision
making about pornography: A reply to Page. Canadian Psychology, 31 (4), 368-371.

Linz, D. & Donnerstein, E. (1990). The relationship between exposure to pornography


and anti-social behavior. The Expert Witness, the Trial Attorney and the Trial Judge. 5,
(Summer), 26-30.

Imrich, D., Mullin, C. & Linz, D. (1990). Sexually violent media and criminal justice
policy. In R. Surette (Ed.), The Media and criminal justice policy: Recent research and
social effects. Springfield, IL: C. C. Thomas, 103-128.

Wilson, B.J., Linz, D. & Randall, B. (1990) Applying social science research to film
ratings: A shift from what is considered offensive to what is considered harmful to
children. Journal of Broadcasting and Electronic Media, 34:(4) 443-468.

Linz, D., Arluk, I. & Donnerstein, E. (1990). Mitigating the negative effects of sexually
violent mass media through pre-exposure briefings. Communication Research. 17 (5)
641-674.

Yang, N. & Linz, D. (1990). Movie Ratings and the Content of Adult Videos: The Sex
Violence Ratio. Journal of Communication, 40 (2),Spring, 28-42.

Linz, D. & Donnerstein, E. (1990). Sexual violence in the media. World Health, April-
May, 26-27.

Hurley, J., Linz, D. (1990). Assessing the effects of the Medicare prospective payment
system on the demand for VA inpatient services: An examination of transfers and
discharges of problem patients. Health Services Research, Vol. 25,(1), 239-255.

Linz, D., Donnerstein, E. & Adams, S. (1989). Physiological desensitization and


judgments about female victims of violence. Human Communication Research, 15, 4,
pp. 509-522.

Linz, D. & Donnerstein, E. (1989). The effects of violent messages in the mass media:
Contemporary theory and research. In J. E. Bradac (Ed.), Messages in communication
science: Contemporary approaches to the study of effects, Vol. 17 in Sage Annual
Review of Communication Research. Newbury Park, CA: Sage.

Linz, D., & Donnerstein, E. (1989). Effects of counter-information on the acceptance of


rape myths. In D. Zillmann & J. Bryant (Eds.), Pornography: Recent research,
interpretations, and policy considerations. Hillsdale, NJ: Erlbaum, 259-288.

11

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Linz, D. (1989). Exposure to sexually explicit materials and attitudes towards rape: A
comparison of study results. The Journal of Sex Research, 26, 1, 50-84.

Linz, D., & Donnerstein, E. (1988). Methodological issues in the content analysis of
pornography. University of Michigan Journal of Law Reform. 21, 1-2, 47-54.

Linz, D., Donnerstein, E. & Penrod, S. (1988). Long-term exposure to violent and
sexually degrading depictions of women. Journal of Personality and Social Psychology,
55(5), 758-768.

Donnerstein, E. & Linz, D. (1988). A critical analysis of "a critical analysis of recent
research on violent erotica." The Journal of Sex Research, 24, 348-352.

Linz, D., & Donnerstein, E. (1988). The methods and merits of pornography research.
Journal of Communication, 38(2), 180-184.

Linz, D., Penrod, S., & Donnerstein, E. (1987). The Attorney General's Commission on
Pornography: The gap between "findings" and facts. The American Bar Foundation
Research Journal, 1987(4), 301-324.

Linz, D., Donnerstein, E., & Penrod, S. (1987). Sexual violence in the mass
media: Social psychological implications. In P. Shaver & C. Hendrick (Eds.), Review of
personality and social psychology (Vol. 7) (pp. 135-175). Newbury Park, CA: Sage.

Saunders, D. G., Lynch, A. B., Grayson, M., & Linz, D. (1987). The inventory of beliefs
about wife beating: The construction and initial validation of a measure of beliefs and
attitudes. Violence and Victims, 2 (1), 39-57.

Linz, D., Donnerstein, E., & Penrod, S. (1987). The findings and recommendations of
the Attorney General's Commission on Pornography: Do the psychological facts fit the
political fury? American Psychologist, 42(10), 946-953.

Donnerstein, E., Linz, D., & Penrod, S. (1987). The question of pornography: Research
findings and policy implications. New York: Free Press.

Linz, D., Penrod, S., & Donnerstein, E. (1986). Issues bearing on the legal regulation of
violent and sexually violent media. Journal of Social Issues, 42(3), 171-193.

Linz, D., Penrod, S., & McDonald, E. (1986). Attorney communication in the
courtroom: Views from off the bench. Law and Human Behavior, 10(4), 281-302.

Linz, D., Donnerstein, E., Bross, M., & Chapin, M. (1986). Mitigating the influence of
violence on television and sexual violence in the media. In R. Blanchard (Ed.), Advances
in the study of aggression (Vol. 2) (pp. 165-194). New York: Academic Press.

12

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Donnerstein, E., & Linz, D. (1986). Mass media sexual violence and male
viewers: Current theory and research. American Behavioral Scientist, 29(5), 601-18.

Donnerstein, E. I., & Linz, D. G. (1986, December). The question of pornography: It is


not sex, but violence that is an obscenity in our society. Psychology Today, 20(12), 56-
59.

Penrod, S., & Linz, D. (1985). Voir dire: Uses and abuses. In M. F. Kaplan (Ed.),
Impact of social psychology on procedural justice. Springfield, IL: C. C. Thomas.

Linz, D., & Penrod, S. (1984). Increasing attorney persuasiveness in the courtroom.
Law and Psychology Review, 8, 1-47.

Linz, D., Donnerstein, E., & Penrod, S. (1984). The effects of multiple exposures to
filmed violence against women. Journal of Communication, 34 (3), 130-147

Donnerstein, E., & Linz, D. (1984, January). Sexual violence in the media: A warning.
Psychology Today, pp. 14-15.

Linz, D., Turner, C., Hesse, B., & Penrod, S. (1984). Bases of liability for injuries
produced by media portrayals of violent pornography. In N. Malamuth & E. Donnerstein
(Eds.), Pornography and sexual aggression (pp. 277-302). New York: Academic Press.

Penrod, S., & Linz, D. (1984). Using psychological research on violent pornography to
inform legal change. In N. Malamuth & E. Donnerstein (Eds.), Pornography and sexual
aggression (pp. 247-273). New York: Academic Press.

Linz, D., & Heberlein, T. A. (1984). Development of a personal obligation to shift


electricity use: Initial determinants and maintenance over time. Energy: The
International Journal, 9, 255-263.

Penrod, S., Linz, D., Heuer, L. Coates, D., Atkinson, M. & Herzberg, S. (1983). The
implications of social science research for trial practice attorneys. In D. J. Muller, D. G.
Blackman, & A. J. Chapman (Eds.), Perspectives in psychology and law (pp. 435-455).
London: Wiley.

Penrod, S. E. Donnerstein & Linz D. (1982). Scientific research on pornography and


violence: The implications for American law. Bulletin of the British Psychological
Society, 35, A100 (Abstract).

Penrod, S, Linz, D. Coates, D. & Herzberg, S. (1982). The implications of social science
research for trial practice attorneys. Bulletin of the British Psychological Society, 35,
A100 (Abstract).

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Heberlein, T. A., Linz, D., & Ortiz, B. (1982). Satisfaction, commitment, and
knowledge of customers on a mandatory participation time-of-day electricity pricing
experiment. Journal of Consumer Research, 9, 106-114.

Heberlein, T. A., Linz, D., & Ortiz, B. (1981). Time-of-day electricity pricing. In J. D.
Claxton, C. D. Anderson, J. R. B. Ritchie, & H. G. McDougall (Eds.), Consumers and
energy conservation: International perspective on research and policy options. New
York: Praeger.

Scholarly Publications (reprinted)

Paul, B., Linz, D. & Shafer, B.J. (2002). Government regulation of adult businesses
through zoning and anti-nudity ordiances: Debunking the legal myth of negative
secondary effects. Communication Law and Policy, 6. 2, 355-391. In "2002 Zoning and
Planning Law Handbook (West Group).

Donnerstein E, Linz D. Mass media, violence and the male viewer. In: Oden ME,
ClayWarner J, editors. Wilmington (DE)7 SR Books/Scholarly Resources; 1998. p. 181
98.

Linz, D., Donnerstein, E., Land, K., McCall, P., Scott, J., Klein, L. J., Shafer, B.J. &
Lance, L. (1991). Estimating community tolerance for obscenity: The use of social
science evidence. Public Opinion Quarterly, Spring, 80-112. In: Monahan, J. & Walker,
L. Social Science in Law, (Fourth Edition), The University of Chicago Press (1998).

Linz, D., Penrod, S., & Donnerstein, E. (1987). The Attorney General's Commission on
Pornography: The gap between "findings" and facts. The American Bar Foundation
Research Journal, 1987(4), 301-324. In: Monahan, J. & Walker, L. Social Science in
Law, (Fourth Edition), The University of Chicago Press (1998).

Donnerstein, E., & Linz, D. (1986). Mass-media sexual violence and male viewers:
Current theory and research. American Behavioral Scientist, 29(5), 601-618. In: Disch,
E. Reconstructing Gender, Mayfield Publishing Company (1997).

Donnerstein, E., & Linz, D. (1986). Mass-media sexual violence and male viewers:
Current theory and research. American Behavioral Scientist, 29(5), 601-618. In: Men
confronting pornography

Donnerstein, E., & Linz, D. (1986). Mass-media sexual violence and male viewers:
Current theory and research. American Behavioral Scientist, 29(5), 601-618. In M.S.
Kimmel & M.I. Messner (Eds.), Men's Lives. (1989), New York, NY, Macmillan.

Donnerstein, E. I., & Linz, D. G. (1986, December). The question of pornography: It is


not sex, but violence that is an obscenity in our society. Psychology Today, 20(12), 56-
59. In O. Pocs (Ed.) Human Sexuality 89/90. Guilford, CT: Dushkin Publishing Group.

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Donnerstein, E., & Linz, D. (1986). Mass-media sexual violence and male viewers:
Current theory and research. American Behavioral Scientist, 29(5), 601-618. In M.
Kimmel (Ed.), Changing men: New directions in research on men and masculinity.
(1987), Newbury Park, CA: Sage.

Linz, D., Donnerstein, E., & Penrod, S. (1984). The effects of long term exposure to
violence against women. Journal of Communication, 34, 130-147. In K. Deming & S.
Becker (Eds.), Media in society: Readings in mass communication. Evansville, IL: Scott-
Foresman (1988).

Donnerstein, E., & Linz, D. (1984, January). Sexual violence in the media: A warning.
Psychology Today, pp. 14-15. In A. Wells (Ed.) Mass Media and Society. D.C. Heath
and Company: Lexington MA (1987).

PROFESSIONAL ACTIVITIES

Research Grants (submitted)

Linz, D. Identifying barriers to victim reports of sexual assault to the police and
developing a mass media campaign to increase reporting. Submitted to the National
Institute of Justice. $196,541 (10/1/98-3/31/00).

Research Grants (funded)

Campus Sexual Misconduct: Using Perpetrator Risk Assessment and Tailored Treatment
to Individualize Sanctioning. Department of Justice, SMART FY14 Campus Sexual
Assault Perpetrator Treatment Program. $3,000 (10/2014-9/2017).

Linz, D. & OConnor, J. Evaluation of a multi-mode intervention (SHARe--The Word)


designed to modify adolescent attitudes about dating violence. California Public Health
Department. $18,600 (10/00-10/03).

Wilson, B., Linz D., & E. Donnerstein. Evaluation of the Choices and Consequences
Initiative. Court TV. $120,635 (6/98-6/99).

Donnerstein, E., Wilson. B., Kunkel, D. & D. Linz. National television violence study.
National Cable Television Association. $3,326,449 (6/94-1/98).

Malamuth, N., & Linz, D. Predicting Sexual Coercion and Antisocial Behavior Against
Women. ($414,284, National Institute of Mental Health, 06/01/89-5/31/91).

Linz, D. Pretrial exposure to mass media and legal decision-making. ($41,804, National
Science Foundation, 7/1/88-10/1/89).

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Malamuth, N. & Linz, D. Predicting sexual coercion and antisocial behaviors against
women: An eight year follow-up. ($2000, Small Research Grant Program, UCLA Center
for the Study of Women, 1/1/88-10/1/88).

Linz, D. Home Box Office presentations of sexual violence and female homicide.
($1880, Small Research Grant Program, UCLA Center for the Study of Women, 3/1/87-
10/1/87).

Spear, M., Linz, D., & Wolfe, B. Effect of Medicare's Prospective Payment on Use of
VA Inpatient Services. ($147,524, Veteran's Administration Health Systems Research
and Development, 10/1/87 to 9/30/89).

Donnerstein, E., Penrod, S., & Linz, D. Sexually violent media and social behavior.
($347,104, National Institute of Mental Health, 7/15/86-6/30/89).

Linz, D., Eichelman, B., & Saunders, D. The frequency of violent acts among inpatients
and the incidence of domestic violence among outpatients in VA Medical District 16.
($10,000, Veteran's Administration Health systems Research and Development, 1/1/86-
12/31/86).

Professional Conference Presentations

Zamanzadeh, N. N., & Linz, D. (2016, June). The mood regulatory function of media
multitasking. Paper presented at the 66th Annual Conference of International
Communication Association, Fukuoka, Japan.

Yao, M. Z. & Linz, D. (2016, June). You have the right to privacy, unless you have
something to hide! Examining the impacts of a perceptual difference between privacy
and secrecy on online privacy concerns and bystander apathy. Paper presented at the
66th Annual Conference of International Communication Association, Fukuoka, Japan.

Zamanzadeh, N.N., Dixon, T.L., Linz, D.G. (2015, November). Is It Me You Are
Looking For Nonresponse as Online Aggression. Paper presented at National
Communication Association, Las Vegas.

Seaman, C.S. & Linz D. (2012). Are Adult Businesses Crime Hotspots? Comparing Adult
Businesses to Other Locations in Three Cities. Paper presented at the annual meeting of
the International Communication Association in Phoenix, AZ.

Giles, H. Bonilla, D, Linz, D. Gomez, M. (2012). Intergroup Accommodations in


Traffic Stops: Ethnicity, Accent and Extensive Policing. Paper presented at the
International Communication Association: Top Papers in Intergroup Communication:
Immigration Issues in Applied Contexts (Phoenix, AZ).

Seaman, C. and Linz, D. (2011). Indecency in the 21st Century: Revisiting the
Assumptions of the Regulation of Indecent Broadcasting. Top Papers - Communication

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and Law Division. A paper presented at the annual conference of the National
Communication Association, Division: Family Communication (New Orleans, LA).

Byrne, S., Lee, T., Katz, S. J., Linz, D. & McIrath, M. (2011). Predators, peers, and
porn: Predicting parent underestimation of childrens risky Internet experiences. Paper
presented at the annual conference of the National Communication Association, Division:
Family Communication (New Orleans, LA).

Seaman, C. and Linz, D. (2011). "The Secondary Effects Doctrine Since Alameda: An
Empirical Re-examination of the Justifications for Laws Limiting First Amendment
Protection," Paper presented at the Annual Meeting of the International Communication
Association Communication @ the Center, (Boston, MA).

Popova, L., Rudy, R. and Linz, D. (2010). Content Analysis Research on Sex Roles: Past,
Present, and Future. Paper presented at the 96th Annual Convention of the National
Communication Association, November, San Francisco.

Linz, D., Paul, B., Seaman, C. (2010). Empirical Jurisprudence Applied to Speech
Regulations: A Longitudinal Investigation of the Secondary Effects of Adult Businesses
in Indianapolis. Paper presented at the 96th Annual Convention of the National
Communication Association, November, San Francisco.

Linz, D. (2009, November). Effects of Sexually Oriented Messages on Individuals and


Communities. Communication and the Law Division. Presentation at the 95th Annual
Convention of the National Communication Association, November 12-15, Chicago.

Seaman, C. & Linz, D. (2009, November). Erotic Dancing, Liquor, and Crime: An
Empirical Critique of Virginia Statute Changes Restricting Liquor Service and Adult
Entertainment. Top Scholarship in Freedom of Expression: The Driving Force for
Stability and Change. Presentation at the 95th Annual Convention of the National
Communication Association, November 12-15, Chicago.

Rudy, R. & Linz, D. (2008, November). Sex Differences in Media Desensitization:


Evidence and Theory. Panel Title: New directions in research on gender differences and
the media. Paper presented at the meeting of the National Communication Association,
San Diego.

Byrne, S. & Linz, D. (2008, May). Investigating the Boomerang Effect in Anti-
Aggression Media Literacy Interventions. Panel presentation at the Annual Meeting of
the International Communication Association in Montreal, Canada.

Rudy, R., & Linz, D. (2007, November). Domains of Media Desensitization: A Model
of the Relationships Among Cognitive, Emotional, Physiological, and Behavioral
Response Systems. Paper presented at the meeting of the National Communication
Association, Chicago, IL.

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Byrne, S. & Linz, D. (2007, November). I Might Not Hit, but I Can Still Be Mean:
Media Interventions and Gender Differences in Overt and Relational Aggression. Paper
presentation at the meeting of the National Communication Association, Chicago, IL.

Paul, B., Linz, D., & Yao, M. (November, 2007). Top Freedom of Expression
Scholarship. Paper Title: Evaluating the Potential Secondary Effects of Adult
Video/Bookstores in Indianapolis, IN. Paper presented in Freedom of Expression
Division of the National Communication Association, (Chicago, IL).

Tajima, S., Suzuki, K., Sado, M., Hasegawa, M., Horiuchi, Y., Sakamoto,
A., Linz, D., Smith, S. L., & Donnerstein, E. (2007) Content analysis of violent images
in Japanese TV commercials. Paper presented at the 7th Biennial Conference of Asian
Association of Social Psychology, Kota Kinabalu, Malaysia.

Fisher, R. D., Linz, D., Seaman, C. (2007). Viewer Judgments Concerning the Sexually
Explicit DVD American Bukkake #14. Paper presented at the annual meeting of the
Society for the Scientific Study of Sexuality.

Horiuchi, Y., Sado, M., Suzuki, K., Hasegawa, M., Sakamoto, A., Isshiki, N., Hattori, H.,
Linz, D., Smith, S. L., & Donnerstein, E. (2006). Content analysis of violence appearing
in Japanese news programs: Its characteristic features compared to the real world and to
other TV genres, 26th International Congress of Applied Psychology, Athens, Greece.

Sado, M., Suzuki, K., Horiuchi, Y., Hasegawa, M., Sakamoto, A., Isshiki, N., Hattori, H.,
Linz, D., Smith, S. L., & Donnerstein, E. (2006). What types of violence are Japanese
children exposed to through daily TV viewing?: Content analysis of TV programs
broadcasted in 2004, 26th International Congress of Applied Psychology, Athens,
Greece.

Linz, D., (November, 2006) Creating Connections in Graduate Education: What is the
Relationship between MA-only and Doctoral Programs? National Communication
Association, (San Antonio, TX).

Linz, D., Yao, M., Byrne, S. & Lichtenstein, A. (November, 2006). Testing Supreme
Court Assumptions in California v. la Rue: Is There Justification for Prohibiting
Sexually Explicit Messages in Establishments that Sell Liquor? Freedom of Expression
Division of the National Communication Association, (San Antonio, TX). Top Four
Refereed Papers in Freedom of Expression.

Mahood, C. & Linz, D. G. (November, 2006). Video game play and the role of
frustration: How playing non-violent video games can lead to aggressive effects. Mass
Communication Division of the National Communication Association, San Antonio, TX.
Top Three Refereed Papers in Mass Communication.

Mahood, C., Yao, M. and Linz, D. (2006, May). Sexual Priming, Gender Stereotyping,
and Likelihood to Sexually Harass: Examining the Effects of Playing a Sexually-Explicit

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Video Game. Panel presentation at the Annual Meeting of the International


Communication Association in Dresden, Germany.

Yao, M, Daniel G. Linz, Bryant Paul (2004, November). A Multi-city Investigation of


Adverse Secondary Effects of Adult Oriented Business on Sex Crimes. Sexual Science
and Politics: Mutual Interactions. Conference of the Society for the Scientific Study of
Sexuality, Orlando, FL.

Linz, D. (2004, November). Symposium Chair: Empirical research on sex, media, and
society. Annual meeting of the National Communication Association, Chicago, IL.

Yao, M. Daniel Linz (2004, November), "A Multi-city Investigation of Adverse


Secondary Effects of Adult Oriented Business on Sex Crimes." Annual meeting of the
National Communication Association, Chicago, IL.

Fisher, R.D., Linz, D. & Paul, B. (2004, May). Examining the Link Between Sexual
Entertainment and Sexual Aggression: The Presence of Adult Businesses and the
Prediction of Rape Rates in Florida. Presentation to the Law and Policy Division at the
2004 annual meeting of the International Communication Association: New Orleans, LA.

Linz, D. & Paul, B. (2004, April). "A Secondary Effects Study of Peep Show
Establishments in San Diego, California." "Sexuality Across Cultures: From the Brain
Lab to the Bedroom." The Western Region Conference of the Society for the Scientific
Study of Sexuality, San Diego.

Yao, M., Mahood, C., Paul, B., Bryne, S. and Linz, D. (2003, November). The role of
individual differences in the effects of video game violence on aggressive thoughts and
self-reported arousal. Annual meeting of the National Communication Association,
Miami, FL.

Paul, B., & Linz, D. (2003, November). Sexual communication and the First
Amendment: Using communication science to inform law and policy debates. Seminar
9, The Far Reaching Interdisciplinary Scholarship of HIV/AIDS, STDs & Sexual
Behavior Research. Annual meeting of the National Communication Association,
Miami, FL.

Zwarun, L. & Linz, D. (May 2003). "College Students' Expectancies about Drinking:
Effects of Gender, Risk Taking, Identification with Television Characters, and Exposure
to Beer Commercials," International Communication Association, San Diego, California.

Linz, D. (February, 2003). We write, judges cite: Communication scholars impact on


the judiciary. Western States Speech Association Annual Meeting. Salt lake City, Utah.

Paul, B., & Linz, D. (May, 2002). Testing Assumptions Made by the Supreme Court
Concerning the Negative Secondary Effects of Adult Businesses: A Quasi-Experimental

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Approach. International Communication Association: Communication Law and Policy.


Seoul, Korea.

Paul, B., A. Fraser, D. Linz, B. J. Wilson, S. L. Smith (May, 2001). Reducing Harmful
Risk Taking Among Adolescents Using a School-based Media Curriculum. Instructionl
and developmental Communication Division of the International Communication
Association meeting. Washington, D.C.

Dixon, T., & Linz, D. (May, 2001). The Portrayal of Race and Crime on Network News.
Mass Communication Divison of the International Communication Association,
Washington, D.C.

Dixon, T., & Linz, D. (May, 2000). Misrepresentation of African American and Latinio
Juvenile Lawbreakers on Local Televison News. Mass Communication Divison of the
International Communication Association, Acapulco, Mexico.

Paul, B., Linz, D., Wilson, B., Smith, S.Federman, J., Nathanson, A., Lingsweiler R., &
Donnerstein, E. (May, 2000). Reducing interpersonal violence and risk taking among
adolescents by increasing awareness of consequences and empathy: An evaluation of a
school-based media curriculum. Instructionl and developmental Communication
Division of the International Communication Association meeting. Acapulco, Mexico.

Linz, D, Paul, B & Shfer, B.J. (May, 2000). Government regulation of adult businesses
through zoning and anti-nudity ordiances: Debunking the legal myth of negative
secondary effects. International Communication Association: Top Three Refereed
Papers in Communication Law and Policy. Acapulco, Mexico.

Linz, D. (August, 1999). Methodological Analysis of Secondary Effects of Adult


Businesses Studies Cited by Communities Across the Country. First Amendment
Lawyers Association Annual meeting, San Fransico, CA.

Linz, D. (August, 1999). Testing Legal Assumptions Regarding the Effects of Dancer
Nudity and Proximity on Erotic Expression.. First Amendment Lawyers Association
Annual meeting, San Fransico, CA.

Dixon, T. & Linz, D. (August, 1999). The Portrayal of Race and Crime on Network
News: An Exploratory Study. Association for Education in Journalism and Mass
Communication. New Orleans, LA.

Dixon, T. & Linz, D. (May, 1999). Race and the Misrepresentation of Victimization on
Local Television News.1999 National Communication Association: Top Three Refereed
Papers in Mass Communication Division. Chicago, IL.

Dixon, T. & Linz, D. (1999). Televsion news, prejudicial publicity and the depiction of
race. International Communication Association Annual meeting. San Fransisco, CA.

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Mulac, A., Jansma, L. & Linz, D. (July, 1998). Interpersonal consequences of exposure
to pornography: Does mens viewing of degrading, sexually explicit film affect their
behavior toward women? International Communication Association annual meeting,
Jerusalem, Israel.

Linz, D. (June, 1998). Predicting Sexual Aggression. A Symposium at the 1998 SPSSI
Convention. Ann Arbor, MI.

Linz, D. & Blumenthal, E. (June, 1998). Testing legal assumptions regarding the effects
of dancer nudity and proximity on erotic expression. Law and Society annual meeting,
Aspen CO.

Linz, D. Donnerstein, E., Shafer, B.J., Blumenthal, E., Gray, T. & Kunkel, D. (February,
1996). Measuring the Communicative Aspects of Nude Dancing: An Experimental Field
Test of Social Psychological Assumptions in Barnes v. Glen Theatre. American
Psychology Law Society Biannual meeting, Hilton Head SC.

Heuer, L. Scelfo, J., Gross, E., Penrod, S., Stroessner, S. & Linz, D. (June, 1995). A test
of a contextual priming model of procedural fairness. Eighth Annual Conference of the
International Association for Conflict Management, Lo-Skolen, Elsinore, Denmark.

Linz, D. (May, 1995). Violence on Television: A Panel Discussion. International


Communication Association Annual Meeting, Albuquerque, NM.

Linz, D. (July, 1994). Examining parallels between the regulation of TV violence and
broadcast indecency. International Communication Association Annual Meeting,
Sydney, Australia.

Linz, D. (July, 1994). Childrens exposure to and comprehension of sexually-oriented


remarks in radio broadcasts: A case analysis of the Howard Stern Show. International
Communication Association Annual Meeting, Sydney, Australia.

Linz, D. (October, 1993). Measuring standards for sex and violence: Misperceptions
between self and community. Society of Experimental Social Psychology (SESP)
Annual Meeting, Santa Barbara, CA.

Linz, D (August, 1993). Presidential Mini Convention on Sex Love and Psychology. The
Future of Sex and Love: A Town Hall Meeting. American Psychological Association
Annual Meeting, Toronto, Ontario, Canada.

Linz, D (August, 1993). Discussion: Patently Offensive: Porn under siege. Ad hoc
Committee on Films and Other Media. American Psychological Association Annual
Meeting, Toronto, Ontario, Canada.

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Malamuth, N., Heavey, C.L., Linz, D. & Barnes, G. (May, 1993). The longitudinal
prediction of mens antisocial behavior against women. International Communication
Association, Washington D.C.

Linz, D., Imrich, D. Mullin, C., Eskenazi, J., & Weiss, A. (Sept., 1992). Assessing the
incidence of pretrial publicity and strategies to offset its effects. The Third European
Conference of Law and Psychology, Oxford, United Kingdom.

Linz, D. & Wilson, B.J. (August, 1992). Adolescents and sexual violence: Mitigating the
effects of mass media. American Psychological Association Annual Meeting,
Washington D.C.

Linz, D., E. Donnerstein, K. Land, P. McCall, J. Scott, L. J. Klein, B.J. Shafer, & A.
Graesner (May, 1992). Defining the limits of public tolerance for sexually explicit and
sexually violent materials: A field experiment. Top Three Refereed Papers in
Communication Law and Policy. Communication Law and Policy Interest Group,
International Communication Association.

Donnerstein, E., Wilson, B. & Linz, D. (1992, May). Can we deal with sexual violence
in the media:? Legal, self-regulatory, and educational solutions. Communication Law
and Policy Interest Group, International Communication Association.

Wilson, B., D.Linz, E. Donnerstein & H. Stipp (1992, May). The Impact of social issue
television programming on Attitudes Toward Rape. Mass Communication Division of
the International Communication Association.

Linz, D. (1991, Aug.). The utilization of mass media research in obscenity trials.
Symposium on the role of mass media research in public policy. American Psychological
Association Annual Meeting, San Francisco.

Weiss, A. & Linz, D. (1991, Aug.) Impression formation and memory in the attribution
of legal responsibility. American Psychological Association Annual Meeting, San
Francisco.

Imrich, D., Mullin, C. & Linz, D. (1991, Aug.) Measuring the extent of prejudicial
publicity in the United States newspapers: A content analysis. American Psychological
Association Annual Meeting, San Francisco.

Eskenazi, J. & Linz, D. (1991, August). The ameliorating effect of jury deliberation on
prejudicial pretrial publicity. American Psychological Association Annual Meeting, San
Francisco.

Wilson, B.J., Linz, D. & Randall, B. (June, 1990) Applying Social Science Research to
Film Ratings: A Shift From What is Considered Offensive to What is Considered
Harmful to Children. International Communication Association, Dublin.

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Linz, D. (November, 1989). Obscenity and the law: Psychological assessments of


community standards concerning explicit sexual material. The American Society of
Criminology Annual Meeting, Reno, NV.

Mullin, C., Imrich, D., & Linz, D. (August, 1989). The effects of date rape information
and prejudicial and nonprejudicial pretrial publicity on jury decision making in a sexual
assault case. American Psychological Association Annual Meeting, New Orleans.

Linz, D., Dexter, H., Penrod, S. & Donnerstein, E. (August, 1989). Exposure to mass
media sexual violence and judgments about domestic abuse victims. American
Psychological Association Annual Meeting, New Orleans.

Arluk, I., Linz, D. & Donnerstein, E. (August, 1989). Mitigating the negative effects of
sexually violent media through pre-movie interventions. American Psychological
Association Annual Meeting, New Orleans.

Linz, D. & Randall, B. (1989, June) R-rated movies and violence: Recent legal
challenges to the MPAA rating system. Law and Society Annual Meeting, Madison, WI.

Linz, D. (August, 1988). Social Psychology and Social Advocacy: Research on


pornography and violence. American Psychological Association Annual Meeting,
Atlanta.

Donnerstein E. & Linz, D. (June 1988). Social science research and the Attorney
General's and the Surgeon General's Commissions on Pornography. XIVth Annual
Congress on Law and Mental Health, Montreal.

Malamuth, N. & Linz, D. (June, 1988). Legal debates in pornography: What social
science can and cannot contribute. Law and Society Association Annual Meeting, Vale.

Dexter, H., Linz, D., Penrod, S. & Saunders, D. (March, 1988). Exposure to media
violence and the blaming of assault victims. American Psychology and Law Society
Biannual Meeting, Miami.

Donnerstein, E. & Linz, D. (1987, November). Uses and abuses of social science
research in the final report of the Attorney General's Commission on Pornography.
Dimension Series Presentation, Speech Communication Association Meeting, Boston.

Linz, D. (1987, August). The findings and recommendations of the U.S. Attorney
General's Commission on pornography. American Psychological Association Annual
Meeting, New York.

Linz, D. (1987, July). Desensitization to filmed violence and reactions to victims of


battering. The Third National Family Violence Research Conference, Durham, NH.

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Linz, D. (1986, July). Desensitization to media violence against women: Theory and
findings. Biennial World Meeting of the International Society for Research on
Aggression, Chicago.

Adams, S., Linz, D., Donnerstein, E., & Penrod, S. (1986, May). Physiological
desensitization and changes in perception of violence after exposure to filmed violence
against women. Annual meeting, Midwestern Psychological Association, Chicago.

Krafka, C., Linz, D., & Penrod, S. (1985, May). Male and female desensitization to
graphic filmed violence against women. Annual Meeting of the Midwestern
Psychological Association, Chicago.

Linz, D., Penrod, S., & Donnerstein, E. (1984, October). Sexual violence:
Desensitization to filmed portrayals and callousness toward victims in other contexts.
Annual Meeting of the Society for Experimental Social Psychology, Snowbird, UT.

Linz, D., Donnerstein, E., & Penrod, S. (1984, August). Desensitization to violence
against women. Annual Meeting of the American Psychological Association, Toronto.

Linz, D., & Penrod, S. (1983, October). The effects of prior attitudes, victim
photographs, and victim coping on jury decision making in a rape case. American
Psychology and Law Society Convention, Chicago.

Donnerstein, E., Linz, D., & Penrod, S. (1983, October). Mitigating the influence of
mass media influenced rape related attitudes and behavior. American Psychology and
Law Society Convention, Chicago.

Krafka, C., Linz, D., & Penrod, S. (1983, October). Factor analysis and further
validation of the Rape Myth Acceptance and Rape Empathy Scales. American
Psychology and Law Society Convention, Chicago.

Penrod, S., Linz, D., & Rios, P. (1983, June). Juror questions during trial: A courtroom
experiment. Law and Society Annual Meeting, Denver, Colorado.

Linz, D., Penrod, S., Bream, J., & Baltaxe, D. (1983, May). Impact of photographs in
the courtroom: Memory availability or emotional arousal? Midwestern Psychological
Association annual meeting, Chicago.

Zimmerman, R. S., Linz, D., Leventhal, H., & Penrod, S. (1983, May). Symptoms,
coping, and lay models of hypertension. Annual Meeting of the Midwestern
Psychological Association, Chicago.

Penrod, S., & Linz, D. (1982, October). Voir dire: Uses and abuses. Annual Meeting of
the Society for Experimental Social Psychology, Nashville, Indiana.

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Penrod, S., & Linz, D. (1982, August). Pornography and harmful behavior: A
comparative legal perspective. Annual Meeting of the American Psychological
Association, Washington D.C.

Linz, D., Siverhus, S., & Penrod, S. (1982, August). Chronicity, causation, severity,
responsibility and emotion: The structure of illness cognition. Annual Meeting of the
American Psychological Association, Washington D.C.

Linz, D., & Penrod, S. (1982, August). Using psychological research on violent
pornography to inform legal change. Annual Meeting of the American Psychological
Association, Washington D.C.

Penrod, S., Donnerstein, E., & Linz, D. (1982, July). Scientific research on pornography
and violence: The implications for American law. International Conference on
Psychology and Law, Swansea, Wales.

Penrod, S., Linz, D., Coates, D., & Herzberg, S. (1982, July). The implications of social
science research for trial practice attorneys. International Conference on Psychology and
Law, Swansea, Wales.

Penrod, S., Coates, D., Linz, D., Heuer, L., Atkinson, M., & Herzberg, S. (1982, July).
Using social science to improve criminal trial advocacy. 20th International Congress of
Applied Psychology, Edinburgh, Scotland.

Penrod, S., Linz, D., & Leventhal, H. (1982, July). Assessing patient- physician
communication difficulties: Pinpointing differences in conceptions of disease. 20th
International Congress of Applied Psychology, Edinburgh, Scotland.

Linz, D., Penrod, S., & Leventhal, H. (1982, July). The cognitive organization of
disease among lay persons. 20th International Congress of Applied Psychology,
Edinburgh, Scotland.

Coates, D., Atkinson, M., Heuer, L., Linz, D., Herzberg, S., & Penrod, S. (1982, July).
Attorney inferences about jurors' trial perceptions: Fact or fantasy? 20th International
Congress of Applied Psychology, Edinburgh, Scotland.

Linz, D. (1982, June). Assessing courtroom performance from the perspective of the
social science observer, the trial practice attorney, and the "jury box." Annual Meeting of
the Law and Society Association, Toronto.

Linz, D., & Penrod, S. (1982, May). Emotional versus rational appeals in closing
statements. Panel at Annual Meeting of the Midwestern Psychological Association,
Minneapolis, MN.

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Linz, D., Penrod, S., Coates, D., Atkinson, M., Heuer, L., & Herzberg, S. (1982, March).
The use of experts in the courtroom: Attorney judgments of expert witness credibility.
Annual Meeting of the Academy of Criminal Justice Sciences.

Penrod, S., Linz, D., & Donnerstein, E. (1982, March). Scientific research on
pornography and violence: The legal context. Annual Meeting of the Academy of
Criminal Justice Sciences.

Donnerstein, E., Linz, D., & Penrod, S. (1982, March). Scientific research on
pornography and violence: The empirical findings. Annual Meeting of the Academy of
Criminal Justice Sciences.

Linz, D., & Penrod, S. (1982, March). A meta-analysis of the influence of research
methodology on the outcomes of jury simulation studies. Annual Meeting, Academy of
Criminal Justice Sciences.

Linz, D., Slack, A., Kaiser, K., & Penrod, S. (1981, October). Meta-analysis of
defendant characteristics studies. Biennial convention of the American Psychology and
Law Society, Cambridge, MA.

Heberlein, T., Linz, D., & Ortiz, B. (1980, September). Satisfaction, knowledge and
contentment of customers on a mandatory participation time-of-day electricity pricing
experiment. International Conference on Consumer Behavior and Energy Use, Banff,
Canada.

Linz, D. (1977, December). Transportation problems of the elderly. Meeting of the


National Science Foundation, Washington, D.C.

Invited Addresses

Linz, D. (2010). Effects of Sexually Oriented Messages on Individuals and Communities:


A History of Challenging Assumptions in the Courtroom. Annual Barnard College, John
Jay, CUNY, joint psychology and law seminar.

Linz, D (2007). Increasing graduate student diversity: Views from the admission
committee level. The 2nd Social, Behavioral and Economic Sciences Alliances for
Graduate Education and the Professoriate (SBES/AGEP) Meeting. University of
California, Santa Barbara.

Linz D. (2004). Can Justice be Served? An Analysis of Issues Surrounding the Kobe
Bryant Sexual Assault Trial and Pretrial Publicity. UCSB Womens Center.

Linz, D. (June, 1998). Undergraduate and graduate education in law and society at
UCSB . Workshop on Undergraduate and Graduate Education in Law and Society. Law
and Society annual meeting, Aspen CO.

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Linz, D. (October, 1997). Violence in the media. Summit 97: Celebrating Community,
Pro-Youth Coalition of Santa Barbara County.

Linz, D. (September, 1996). Plenary Speaker: The National Television Violence Study,
USA. Fourth Annual International Film Regulators Conference, London, England.

Linz, D. (September, 1996). Plenary Speaker: Violence and the internet. Fourth Annual
International Film Regulators Conference, London, England.

Potter, J., Linz, D., Wilson, B.J., Kunkel, D., Donnerstein, E., Smith, S.L., Blumenthal,
E. & Gray, T. (June, 1996). Content analysis of entertainment television: New
methodological developments. Duke Conference on Media Violence and Public Policy.

Wilson, B.J., Potter, J., Linz, D., Donnerstein, E., Kunkel, D., Smith, S.L., Blumenthal,
E. & Gray, T. (June, 1996). Content analysis of entertainment television: Results for
1994-5. Duke Conference on Media Violence and Public Policy.

Wilson, B.J., Donnerstein, E., Linz, D.,, Kunkel, D., Potter, J., Smith, S.L., Blumenthal,
E. & Gray, T. (June, 1996). Content analysis of entertainment television: The
importance of context. Duke Conference on Media Violence and Public Policy.

Kunkel, D., Wilson, B.J., Potter, J., Linz, D., Donnerstein, E., Smith, S.L., Blumenthal,
E. & Gray, T. (June, 1996). Content analysis of entertainment television: Implications
for public policy. Duke Conference on Media Violence and Public Policy.

Linz, D. (August, 1993). Presidential Mini Convention on Sex Love and Psychology.
Invited Dialogue on Obscenity and Pornography. American Psychological Association
Annual Meeting, Toronto, Canada.

Linz, D. (March, 1992). Plenary Speaker: Research report on the effects of exposure to
sexually explicit and sexually violent materials on human behavior. Third Annual
International Film Regulators Conference, London, England.

Linz, D. (April, 1990). Sexual Violence in the Mass Media and Social Policy. Invited
Address, Western Psychological Association Annual Meeting, Los Angeles CA.

Linz, D. (January, 1990). Expert Testimony in Obscenity Cases. Invited Address, First
Amendment Lawyers Association, Winter Meeting, San Diego, CA.

Linz, D. (February, 1989). Panel Discussion: Pornography and the Law. 16th Annual
Conference of the Western Society of Criminology, Orange, CA.

Linz, D. (1988, June). The use and misuse of social science research in reports on
pornography by the U.S. Attorney General and U.S. Surgeon General. Invited
presentation. Symposium on Pornography Social Science and the Common Law,
International Congress of Law and Mental Health. Montreal, Canada.

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Donnerstein, E., & Linz, D. (1985, November). Mass media effects on desensitization
of sexual violence. Invited symposium presentation. American Society of Criminology,
San Diego.

Donnerstein, E., & Linz, D. (1985, September). Desensitization to sexual mass media
violence. Invited symposium presentation, International Academy of Sex Research,
Seattle, WA.

Linz, D. (1985, May). Pornography: New approaches and justifications for regulating.
Presentation at the American Association for the Advancement of Science Annual
Meeting, Los Angeles, CA.

Linz, D., & Donnerstein, E. (1985, April 17). Effects of sexual violence in the media:
Recent research. Seminar at the Department of Criminal Justice, Indiana University,
Bloomington, IN.

Linz, D. (1984, August). Sexual violence and the constitution. Paper presented at the
Project '87 seminar "Individual Rights and the First Amendment." University of Illinois-
Chicago Circle.

Linz, D. (1984, September). Research report to the international conference of film


regulators. Presented at the International Conference of Film Regulators, Toronto,
Canada.

Linz, D., & Donnerstein, E. (1984, November). Pornography and sexual violence in the
media: Effects on attitudes and behavior. Presented at the Annual Meetings of the
American Society of Criminology, Cincinnati, OH.

PROFESSIONAL SERVICE

Editorial Board of Media Psycholog.

Special Issue Editor: Content analysis. Sex Roles: A Journal of Research (2009-2010)

Consulting Editor: 1991-93 Journal of Research in Personality, Academic Press.

Journal Refereeing

2001-pres. Media Psychology


1989-pres. Human Communication Research
1988-pres. Journal of Personality and Social Psychology
1987-pres. Journal of Communication
1989-pres. Communication Research
1986-pres. Journal of Research in Personality
1988-pres. Journal of Sex Research

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1987-pres. Journal of Experimental Psychology


1988-pres. Law and Human Behavior
1990-pres. Journal of Broadcasting and Electronic Media
1990-pres. Law and Society Review

Professional Memberships

International Communication Association (ICA)


Law and Society Association
American Psychology-Law Society (APA Division 41)
Society for the Psychological Study of Social Issues (APA Division 9)

UNIVERSITY AND PUBLIC SERVICE

Communication Department

1991-2 Graduate Advisor/ Chair-Graduate Committee


1990-4. Member Graduate Committee
2004 Chair-Search Committee Media Communication Position
2005-2008. Graduate Advisor/Chair-Graduate Committee
2001-pres. QMSS Department representative

Graduate Students Supervised


(Directed*/Committee Member)

1. Ilene Arluk M.A.* 1988


2. Cynthia Felando M.A. 1989
3. Barbara Randall M.A. 1989
4. Diana Stroyls M.A.* 1990
5. Audrey Weiss M.A. 1990 Ph.D. 1994
6. Britt Andreata M.A.* 1991
7. Susan Fox M.A. 1991 Ph.D. 1994
8. Wangner Diaz M.A. 1991
9. James Harwood M.A. 1992 Ph.D. 1994
10. Jay Eskenazi M.A.* 1992
11. Dorothy Imrich M.A.* 1992 Ph.D.* 1998
12. Laura Jansma M.A.* 1992 Ph.D. 1996
13. Charles Mullin M.A.* 1992 Ph.D.* 1996
14. Laura Leets M.A. 1992 Ph.D. 1995
15. Denise Filotas M.A. 1993
16. Amy Tendrich M.A. 1993
17. Xixia Han M.A. 1993
18. Travis Dixon M.A.* 1994 Ph.D.* 1998
19. Timothy Gray M.A. 1996
20. Sunwolf M.A. 1997
21. Carrie Colvin M.A. 1999

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22. Stacey Smith Ph.D. 1999


23. Laura Zwarun Ph.D.* 2002
24. Bryant Paul Ph.D.* 2003
25. Carolyn Shepard Ph.D. 2004
26. Joan OConnor Ph.D.* 2005
27. Mike Yao M.A. 2003 Ph.D.* 2006
28. Chad Mahood Ph.D.* 2006
29. Sahara Byrne M.A. 2005 Ph.D.* 2007
(K. Kyoon Hur Dissertation Award International
Communication Association, Mass Communication
Division. 2009, Chicago Illinois.) (Outstanding Dissertation
of the Year International Communication
Association. Instructional & Developmental
Communication Division. Montreal, Quebec, 2008. )
30. Karyn Riddle M.A. 2005 Ph.D. 2007
31. Emily Moyer Ph.D. 2007
32. Rena Rudy M.A.* 2006 Ph.D.* In prog.
33. Ryan Lingsweiler Ph.D. 2014
34. Lyudmila Popova M.A.* 2008 Ph.D. 2010
35. Paul Kang M.A.* 2008
36. Abby Prestin M.A. 2009 Ph.D. 2012
37. Grace Anderson M.A. 2009 Ph.D. 2011
38. Elisia Sim M.A. 2009
39. Christopher Seaman M.A.* 2010 Ph.D.* 2014
40. Theresa De Los Santos M.A. 2010 Ph.D. 2014
41. Jiyeon So Ph.D 2013
42. Ryan Medders Ph.D 2014
43. Mary Danis Ph.D 2010
44. Heidi Kane (Psychology) Ph.D 2009
45. Douglas Bonilla M.A. 2011
46. Amber Westcott Baker Ph.D 2012
47. Cynthia Bates Ph.D 2012
48. Rebecca Speer M.A. 2010.
49. Debra Bunyan (Psychology) Ph.D. 2012
50. K.K. Holland M.A. 2011
51. Rebekah Pure Ph.D. 2013
52. Andrew Zhang Ph.D. 2013
53. Lauren Keblusek M.A. 2014

Richard Huskey M.A. 2014 Ph.D. In Prog.

Michael Mangus M.A. 2013 PhD. In Prog.

Alex Sink M.A. In Prog.

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Academic Senate Service

Member: UCSB Lancaster Dissertation Prize Committee, 2010.


Member: UCSB Graduate Council, 2009-pres.
Member: DIGSSS Fellowship Committee, 2006-pres.
Plous Award Committee, 2005, Chair, 2010.
Member: Human Subjects Review Board, 1990-pres.
Creation and Coordinating Committee Member: Quantitative Methods in Social Science,
1999-2001.
Advisory Board Member: Social Sciences Survey Center, 1999-2002.

Campus-wide Addresses

Linz, D (2007). Increasing graduate student diversity: Views from the admission
committee level. The 2nd Social, Behavioral and Economic Sciences Alliances for
Graduate Education and the Professoriate (SBES/AGEP) Meeting. University of
California, Santa Barbara.

(March 2002). National Security vs. Personal Liberty, Invited Address and Debate
Moderator, panelists Nadine Strossen and William H. Webster, University of California,
Santa Barbara.

(Oct. 1991). Obscenity and pornography: Can the Social Scientist Evaluate
Contemporary Community Standards. Chancellors Council Mini-Symposium Series
1991-92.

Faculty Address (Sept, 1991): Chancellors Convocation for New Students.

Linz, D (June, 1991). Free speech and sensitivity to ethnic diversity. Commencement
address, University of California, Santa Barbara.

COMMUNITY SERVICE

Public Testimony/Governmental and


Technical Reports

2010. Testimony before the Missouri General Assembly. SB 586, Regulation of Sexually
Oriented Businesses Legislation Proposed by the State of Missouri Senate.

2009. Testimony before the Missouri General Assembly. HB 321, SB 226, Regulation of
Sexually Oriented Businesses Legislation Proposed by the State of Missouri General
Assembly.

2008. State of New Jersey 213th Legislature, Senate, no. 945 an act concerning the
regulation of sexually oriented businesses.

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2008. Testimony before the California State Assembly, AB 2014: Impose a tax on gross
receipts, as defined, of an adult entertainment venue, as defined, in this state at a rate of
25%.

2007. Testimony before the Sarasota county commission, Florida ordinance no. 2007-
100-a an ordinance of Sarasota county, Florida, relating to sexually oriented businesses,
with the provisions of this ordinance establishing licensing requirements and regulations
for sexually oriented businesses.

Linz, D. (October 5, 2005). Testimony before the Judiciary Committee on Criminal


Justice, The Ohio State Senate, Columbus, OH. Am. H.B. no. 23 Would regulate adult
entertainment establishments and permit townships to regulate such establishments.

Linz D., Yao, M. and Paul, B. (May 16, 2004). Testing The Assumption That Adult
Businesses Produce Adverse Secondary Effects in Ohio. Testimony before the General
Assembly of the State of Ohio, Sub. H.B. No. 426

Linz, D. and Paul, B. (2002). Paper on the Applicability of the 1977 Los Angeles
Secondary Effects Study as a Basis to Justify the Preclusion of Multiple Use Adult
Businesses, and an Analysis of More recently Conducted Secondary Effects Sudies.
Presented in support of the amicus curiae brief of the First Amendment Lawyers
Association, in The City of Los Angeles v. Alameda Books, Inc. Supreme Court of the
United States.

Participant in the Development of the Report (2001) Violence in the Media and Its
Effect on Youth Violence, in: Youth Violence: A report of the Surgeon General. U.S.
Department of Health and Human Services.

Linz, D. (1999). Paper on the Secondary effects studies relied upon by government
bodies when enacting legislation to regulate adult businesses. Presented in support of
the amicus curiae brief of the First Amendment Lawyers Association, in Erie PA v. Paps
A.M. Supreme Court of the United States.

Wilson, B.J., Kunkel, D., Linz, D., Potter, W.J., Donnerstein, E., Smith, S.L.,
Blumenthal, E.Y., & Colvin (1997). Implications of the National Television Violence
Studys content-based findings for evaluating the industrys V-chip ratings. Report to the
Federal Communications Commission (CS Docket 97-55).

Wilson, B.J., Kunkel, D., Linz, D., Potter, W.J., Donnerstein, E., Smith, S.L.,
Blumenthal, E.Y., & Grey, T.E. (1996). National Television Violence Study (1996).
Violence in television programming overall: University of California, Santa Barbara.
Scientific Papers: National Television Violence Study. Studio City, CA: Mediascope.

Wilson, B.J., Kunkel, D., Linz, D., Potter, W.J., Donnerstein, E., Smith, S.L.,
Blumenthal, E.Y., & Grey, T.E. (1996). Television violence and its context: A content

32

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analysis 1994-1995. Executive Summary: National television violence study. Studio


City, CA: Mediascope.

Linz, D. (1993). The effects of exposure to sex and violence and the likely impact of a
statewide law to allow victims of pornography to be compensated for injuries. Testimony
before the California Senate Judiciary Committee, Sacramento CA.

Linz, D. (1993). The effects of exposure to sex and violence and the likely impact of a
zoning ordinance for businesses selling sexually explicit material. Testimony before the
City Council, Santa Maria, CA.

Linz, D. (1991). Recent research on sex and violence in the media. Presentation, The
Santa Barbara Rotary Club.

Linz, D. (1991). Obscenity law and social science measurement of community standards.
Presentation, Santa Barbara Women Lawyers, Santa Barbara, CA.

Donnerstein E. & Linz, D. (1990). Evidence on the Causal Connection Between


Exposure to Penthouse Magazine and Anti-social Conduct. Testimony before the
Indecent Publications Tribunal, Wellington, New Zealand.

Linz, D. (1990). The effects of sexual violence in the mass media. Testimony before the
Senate Judiciary Committee on California Senate Joint Resolution No. 65--"Relative to
television violence".

Donnerstein, E., Wilson, B., & Linz, D. (1990). Review of social science research on the
effects of sexually indecent materials. Enforcement of Prohibitions Against Broadcast
Indecency in 18 U.S.C. 1464, MM Docket No.89-494.

Linz, D. (November, 1989). The effects of exposure to pornography on attitudes about


rape and rape victims. Testimony on proposed obscenity legislation before the Michigan
House of Representatives and Senate.

Linz, D. (1988, November). The effects of media violence on children. Testimony before
the California Legislature Senate Select Committee on Children and Youth. Riverside
California.

Donnerstein, E., & Linz, D. (1986, June). Techniques designed to mitigate the impact of
mass media sexual violence on adolescents and adults. Invited symposium presentation.
Surgeon General's Workshop on Pornography and Public Health, Washington. In The
Report of the Surgeon General's Workshop on Pornography and Public Health.
Washington, DC: US Public Health Service, 1986.

Donnerstein, E., & Linz, D. (1985, Sept.). Presentation to the US Attorney General's
Commission on Pornography, Houston, TX.

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Linz, D., Donnerstein, E., & Penrod, S. (1985, January). Pornography, sexual aggression
and the law. Presentation at Statewide Prosecutor Education and Training program, and
meeting of the Wisconsin District Attorneys Association, Madison, WI.

Linz, D. (1984, October 16). Violent media imagery and violence against women.
Sensitive Crimes Seminar, City of Madison Police Department, Madison, WI.

Linz, D. (1984, July). The relationship between pornography and violence. Testimony
before the Illinois Commission on the Status of women on. Chicago.

Linz, D. (1984, February). Civil litigation and victims of violent pornography.


Symposium on Media Violence and Pornography, Toronto, Canada.

Donnerstein, E., & Linz, D. (1984, January). New directions in research on violence in
the media. Paper presented at the Symposium on TV Violence, National Coalition on
Televised Violence, American Medical Association, Washington D.C.

Linz, D. (1982, April). Applying psychological research to the courtroom. State Bar of
Wisconsin Annual Meeting, Madison, WI.

List of Federal and State Court Cases in which Daniel Linz has Testified

Johnson v. County of Los Angeles Fire Dep't, 865 F. Supp. 1430 (C.D. Cal. 1994).

Deja Vu of Nashville, Inc. et al. v. Metropolitan Government of Nashville and Davidson


County, et al., United States District Court for the Middle District of Tennessee,
Nashville Division.

Nite Moves Entertainment Inc. v. City of Boise, United States District Court for the
District of Idaho.

State of Florida v. Calderon et al., County Court of the Thirteenth Judicial Circuit in and
for Hillsborough County, Florida.

Nightlife Partners, LTD; et al. v. City of Beverly Hills, United States District Court,
Central District of California.

Kentucky Restaurant Concepts, Inc. v. The City of Louisville, Jefferson County Kentucky
in the United States District Court, Western District of Kentucky at Louisville.

Route 62 video and Books, Inc., v. City of Alliance, in the United States District Court for
the Northern District of Ohio Eastern Division.

J.Rs Kitty Kat Lounge, Inc. v. City of South Bend, in the St Joseph Superior Court, St
Joseph County Indiana.

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R.V.S., LLC v. City of Rockford, United States District Court, Northern District of Illinois,
Western Division.

Kentucky Restaurant Concepts, Inc. v. Louisville Jefferson County Metro Government,


Jefferson County Circuit Court, Division Six.

Atlantic Enterprises v. The Mayor and Borough of Carlstadt, Superior Court of New
Jersey, Bergen County Vicinage.

Washington Retailment, Inc. v. City of Centralia, U.S. District Court Case NO. C03-
5137.

J.L. Spoons Inc. et al., v. Kenneth Morckel et al., U.S. District Court, Northern District of
Ohio.

Annex Books, et al. v. City of Indianapolis, Case No. 03 CV 00918, United States District
Court. Southern District of Indiana.

Pennsylvania Pride Inc. v. Township of Southampton, Case No. 2000-3181, United


States District Court.

Giovani Carandola, Ltd., et al. v. Ann Scott Fulton, et al., Case No. 1:01CV115, United
States District Court.

New Albany DVD, LLC, Plaintiff, vs. City of New Albany, Indiana, Defendant. United
States District Court Southern District of Indiana New Albany Division. 4:04-cv-00052-
SEB-WGH.

Daytona Grand, inc. d/b/a Lollipop's Gentlemen's Club, a Florida corporation, Miles
Weiss and John Doe, plaintiffs, -vs- City of Daytona Beach, Florida, a municipal
corporation, defendant. United States District Court Middle District of Florida Orlando
Division. Case no. 6:02-cv-1469-orl-28krs

22ND AVENUE STATION, INC., a Minnesota corporation, Plaintiff, v. City of


MINNEAPOLIS, a municipal corporation, Defendant. United States District Court,
District of Minnesota: 06-cv-00495-MJD-AJB.

VIP OF BERLIN, LLC v. THE TOWN OF BERLIN, CONNECTICUT, a Municipal


Corporation; and HERMAN MIDDLEBROOKS, JR. in his official capacity as Town
Manager for the Town of Berlin, Connecticut NO.: 3:06CV01811 (SRU) APRIL 17,
2007.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO


EASTERN DIVISION. 84 VIDEO/NEWSSTAND, INC., et al., Plaintiffs v. THOMAS
SARTINI, et al., Case No.: 1:07 CV 3190

35

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


ALAMEDA BOOKS, INC.; et al., Plaintiff v. CITY OF LOS ANGELES, Case No. CV
95-07771 DDP (CTx)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK.


FOR THE PEOPLE THEATRES OF N.Y., INC. d/b/a FAIR THEATRE and JGJ
MERCHANDISE CORP., d/b/a VISHANS VIDEO a/k/a MIXED EMOTIONS,
Plaintiffs, -against- THE CITY OF NEW YORK; HON. MICHAEL R. BLOOMBERG,
as Mayor of the City of New York; AMANDA M. BURDEN, as Director of City
Planning, Department of City Planning of the City of New York, and PATRICIA J.
LANCASTER, as Commissioner of Buildings, Department of Buildings of the City of
New York, Defendants. Index No: 121080/02.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS.


Abilene Retail # 30, Inc., Plaintiff, vs. Board of Commissioners of Dickinson County,
Kansas, et al., Defendants. Case No. 2:04-CV-2330.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF


VIRGINIA Richmond Division , IMAGINARY IMAGES, INC. dba PAPER MOON, et
al., Plaintiffs, v. Civil No.: 2:08cv398 PAMELA OBERRY EVANS, et al., Defendants.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK.


TENS CABARET, INC. f/k/a Stringfellows of New York, Ltd. PUSSYCAT LOUNGE,
INC., d/b/a/ Pussycat Lounge; CHURCH STREET CAF INC., d/b/a Baby Doll; 69-
20 QUEENS BLVD. INC., d/b/a Nickels. Plaintiffs, Index No. 121197/02 vs. THE
CITY OF NEW YORK; MAYOR MICHAEL BLOOMBERG, as Mayor, etc., et al.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF


TENNESSEE WESTERN DIVISION, ENTERTAINMENT PRODUCTIONS, INC., a
Tennessee Corporation, d/b/a Christies Cabaret, et al., Plaintiffs, v. SHELBY COUNTY,
TENNESSEE et al. Defendants.

PERSONAL REFERENCES

Dr. Edward Donnerstein, Dean, Division of Social Sciences


University of Arizona.

Dr. Neil Malamuth, Chair


Department of Speech and Communication Studies Program, University of California,
Los Angeles, CA 90026

Dr. Steven Penrod, Distinguished Professor of Psychology,


John Jay School of Criminal Justice. New York, New York.

36

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EXHIBIT 3

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J
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COMMUNICATION


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TAILORING IN FIRST AMENDMENT DOC.TRINE :...-.. -. . ' . .: , '-' .
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6 COMM. L. & POL'Y 355-391 (2001)


Copyright 2001, Lawrence Erlbaum Associates, Inc.

GOVERN'MENT REGll""LATION OF ''ADULT''


BUSINESSES THROUGH ZONING
AND ANTI-NUDITY ORDINANCES:
DEBUNKING THE LEGAL MYTH OF
NEGATI\'~ SECONDARY EFFECTS

BRYANT PAUL*
DANIEL LINZ**
BRADLEYJ. SHAFER***

Municipalities that prohibit "adult" businesses from


operating in certain areas have justified these "zoning"
regulations by advancing the idea that the presence of
the business will have so-called "adverse, or negative
secondary effects" on the surrounding communit;y. Most
recently, a plurality of the United States Supreme Court
has upheld the extension of this doctrine beyond the
zoning of adult businesses to the symbolic behavior
within them in the form of ordinances banning nudity.
This article abst:racts and analyzes the methods and
major empirfoal findings of studies conducted by United
States municipalities, purporting to detect adverse
secondary effects of adult businesses. With few
exceptions the methods used in the most frequently cited
studies a:re seriously and often fatally fiawed. These
studies, relied on by other communities throughout the
country, do not adhere to professional standards of
scientific inquiry and nearly all fail to meet the basic
assumptions necessary to calculate an error rate-a test
of the reliability of findings in science. Those studies
that are scientifically credible demonstrate either no

*Ph.D. candidate, Department of Communication, University of Califor-


nia, Santa Barbara
"':i.Professor, Department of Communication and Law and Society Pro-
gram, University of California, Santa Barbara.
***Attorney, Shafer and Associates, P.C., Lansing, Michigan.

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356 6 CO:M:M. L. & POL'Y 355 (2001)

negative secondary effects associated with adult


businesses or a reversal of the presumed negative effect.
The implications of the lack of evidence of adverse
secondary effects for the regulation ofperformances
within adult businesses are discussed.

Since 1976, the United States Supreme Court has decided a se-
ries of cases focusing on whether the free speech clause of the First
Amendment allows cities and states to enact legislation controlling
the location of "adult" businesses. 1 These "zoning" regulations,
which may prevent a sex-related business from operating, for ex-
ample, within a certain number of feet from residences, schools and
houses of worship or a given distance from one-another, have been
predicated on the notion that cities and other municipalities have a
substantial interest in combating so-called "negative secondary ef-
fects" on the neighborhoods surrounding adult businesses. These
secondary effects have most often included alleged increases in
crime, decreases in property values, and other :indicators of neigh-
borhood deterioration in the area surrounding the adult business.
Typically, communities have either conducted their own investiga-
tions of potential secondary effects or have relied on studies con-
ducted by other cities or localities.
In more recent years, the Court has considered the constitutional-
ity of anti-nudity legislation passed by municipalities or states that
have relied on the negative secondary effects doctrine as justifica-
tion. 2 The CourtinBames v. Glen Theatre, Inc. held that the State of
Indiana could regulate nudity; vvith a plurality of the Court
concluding that the government could undertake such regulation to
protect the public order and morality. 8 In a concurring opinion, how-
ever, Justice Souter argued that the State had justified the ban on
the basis of the presumed negative secondary effects on the sur-
rounding community. 4
Most recently, in City of Erie u. Pap's A.M., the Court again held
at municipalities have the right under appropriate circumstances
pass anti-nudity ordinances.5 Again, however, the Court was frac-
ed. Three justices agreed with Justice O'Connor's opinio11 that

1See, e.g., City of Renton v. Playtime Theatres, Inc., 4.75 U.S. 41 (1986); Youngv.
. Mini Theatres, Inc., 427 U.S. 50 (1976).
2See, e.g., Barnesv. Glen Theatre, Inc., 501 U.S. 560 (1991); City ofEriev. Pap's
.M., 120 S. Ct. 1382 (2000).
3 501 U.S. at 567-68.
41d. at 582-84 (Souter, J., concurring).
5120 S. Ct. 1382.

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NEQ.<\TIVE SECONDARY EFFECTS 357

combating negative secondary effects supposedly associated with


adult businesses was a legitimate basis for the imposition of an
anti-nudity regulation. 6 Most notable for the purposes of this article
was, however, Justice Souter's partial concurrence and partial
dissent, in which he significantly revised the position he took regard-
ing secondary effects in Barnes. In Pap ts, Justice Souter admitted
that the evidence of a relationship between ad.ult businesses and neg-
ative secondary effects is at best inconclusive. 'I He called into ques-
tion the reliability of past studies that purported to demonstrate
these effects and suggested that municipalities 'V\rishing to ban nudity
must show evidence of an actual relationship between adult busi-
nesses and negative effects. 8
The recent expansion of the secondary effects "doctrine" to in-
clude not only the zoning of adult businesses but now the regulation
of the content of ~'"Pression within these establishments, raises the
question: How reliable and valid are the so called "studies" con-
ducted by individual municipalities and shared nationwide with
other municipalities attempting to regulate the location of, and most
recently, erotic expression within, adult businesses? Examined in
this article is the scientific validly of the research considered by mu-
.cipalities across the country as a justification for the regulation of
dult businesses.

SUPREME COURT ON OBSCENITY

Early attempts to regulate adult businesses involved enforcement


f obscenity laws. The United States Supreme Court rendered its
irst authoritative decision on obscenity in Roth v. United States. 9
he Court ruled that obscene material was not protected by the First
!.ID.endm.ent to the Constitution. It defined obscene materials as
hose that "appeal to a prurient interest'' in sex (defined as a shame-
' mo:rbid and unhealthy interest in sex:) and are presented in a "pa-
ently offensive way."10
Through the 1960s, the Roth test was refined to reflect objections
o the suppression of erotica. In Kingsley International Pictures
. orp. v. Regents, the Court found that a fihr1 based on the erotic
ovel, Lady Chaterly's Lover, was not obscene under the Roth test. 11

6Id. at 1393 (O'Connor, J., concurring).


7Jd. at 1404.-05 (Souter, J., concurring in part and dissenting in part).
BJd. at 1402-03 n.3.
9 54 U.S. 476 (1957).
10Id. at 488.
1 1350 U.S. 684., 689-90 (1959).

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6 CO:MM. L. & POL'Y 355 (2001)

be Court greatly expanded the scope of permissible sexual portray-


s with its decision in Memoirs u. Massachusetts.12 At issue was the
era...--y work, "lllemoirs of a Woman ofPleasure, comm.only known as
nny Hill, by John Cleland. The Court ruled that the prosecution
ust prove to the jury's satisfaction that the work in question is "ut-
rly without socially redeeming value." In the Court's view the First
endm.ent protection given to "socially redeeming ideas" was suffi-
ci nt to override the accompanying portrayals of sexual activity.is
L ter, the Court further broadened its notion of permissibility by
st "king down another obscenity conviction in Stanley v. Georgia.14
In this case, the defendant had been found guilty of possessing ob-
sc ne materials in his home. The Supxeme Court :ruled that the First
endment provides protection for the individual's right to receive
ormation and ideas about sex.1 5
he body of social science research sponsored by the 1970 Presi-
de tial Commission on Obscenity and Pornography in the United
s~ tes was the first systematic academic foray into the study of expo-
s e to sexually explicit materials. 16 Consistent with the more liberal
Su reme Court rulings in the 1960s, the Commission concluded that
th. e were no scientifically demonstrated harmful effects from por-
no aphy and recommended legalization of all forms of se1.'Ually ex-
pli it communication.
more politically conservative Court ruled, in Miller v. Califor-
nia that "contemporary community standards" must be used to
res lve the underlying questions of fact regarding "prurient inter-
est' and "patent offensiveness." 17 By the late 1980s and early
199 s empirical studies estimating community standards for sexu-
ally eJtplicit materials suggested that even in politically conserva-
tive communities, the majority of citizens actually found such
mat rials non-obscene. 18

12 83 U.S. 413 (1966).


13 at 418.
1 4 94 U.S. 557 (1969).
151 . at 567-68.
16 RESIDENTIAL CoMM'N ON OBSCENITY AND Por..NOGD.APHY, TECHNICAL REPORTS
OF 'l' , PRESIDENTIAL COJ.v.r:M'N ON OBSCENITY AND PORNOGRAPHY (1970).
114 3 U.S. 15, 24.-25 (1973) .
.1.1, e Daniel Linz et al., Estimating Community Tolerance for Obscenity: The Use
of' Soc az Science Evidence, 55 PUB. OPINION Q. 80 (1991); Daniel E. Linz et al.,Mea-
surin Community Standards for Sex and iliolence: An. Empirical Challenge to As-
sump ons in Obscenit)1 Law, 29 L. & Soc'Y REv. 127 (1995). Social science research
sugge ts that communities may tole:-ate and/or accept for others, S&'Ually explicit
mate al involving consenting adults. However, se,rual violence, the use of children
in po ography and eJrtreme forms of nonse,::ual violence are not tolerated. Sec id.

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NEGATIVE SECONDARY EFFECTS 359

Recently, some feminists have argued that the traditional obscen-


ity perspective, with its emphasis on sexual explicitness and its no-
tion of offensiveness, moral corruption and shame, is misguided.19 In
their view, the regulation of pornography should not be a means for
the government to preserve public morals. Instead, regulation
should prevent harms to women, including sexual harassment, dis-
crimination and sexual assault.
Efforts to change the legal system to allow women to address por-
nography's supposed harms were undertaken in the 1980s. The pur-
pose of these laws was to perm.it women to address the harms
claimed to have been done to them by pornography, both as individu-
als and as a class of persons. In the early 1980's, a model ordinance
was introduced in Minneapolis, where it was rejected, and in India-
napolis, where it passed and became law for a time. The ordinance
defined pornography as the "graphic sexually explicit subordination
of women." Immediately after its passage, the Indianapolis ordi-
nance was challenged. A federal district court declared the Indianap-
olis ordinance unconstitutional in American Booksellers Association
v Hudnut, arguing that an ordinance that makes injuries of pornog-
raphy actionable is unconstitutional under the First Amendment be-
cause the law prohibits expression of a point ofview. 20 Social science
research testing feminist socio-legal theory has examined pornogra-
phy's effect on attitudes that justify violence towards women, under-
mine viewer sensitivity to female victims of rape and violence and
increase discriminatory and sexually explicit behavior. 21
Most recently, governments have shifted away from obscenity
prosecutions and are attempting to regulate hve performances in
adult nightclubs across the United States. These regulations have of-
ten been based on the notion that government is permitted to ban be-
havior, such as nude dancing, if such laws can be shown to be
1
'content neutral" and directed at curbing the so-called adverse sec-
ondary effects allegedly associated with adult businesses. 22 Law-

19See IN HARM'S WAY: THE PORNOGRAPHY CIVIL RIGHTS HEARINGS (Andxea


Dworkin & Catherine A. MacKinnon eds., 1988); Catberir1e Macl:3-nnon, Not a.
Moral Issue, 2 YALE L. & PoL'Y REV. 321 (1984).
20Am. Booksellers A.ss'n v Hudnut, 598 F. Supp 1316, 1320 (S.D. Ind. 1984),
affd, 771 F.2d 323 (7th Cir. 1985), a.ffd, 475 U.S. 1001 (1986).
21See EDWARD DONNERSTEIN ET AL., THE QUESTION OF PoRNOGRA.Pfil' (1987).
22Sec Daniel Linz et al., Testing Legal Assumptions Regarding the Effects of
Dancer Nudity and Proximity to Patron on Erotic Expression, 24. L. & HUM. BEHAV.
507 (2000). This social science investigation demonstrated that contrary to the as-
sumption made by Cluef Justice Rehnqwst mBarnes, 501 U.S. 560 (1991), laws that
prescribe putting pasties and G-string on exotic dancers are, in fact., not seen as con-
tent neutral. Results of a field experiment in which dancer nudity (nude vs. partial

.. -------,-------------------------------------
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makers across the count!'y have referred to a number of secondary


effects studies undertaken by municipalities interested in "zoning"
adult businesses as justification for regulating nudity in the busi-
ness. The scientific validity of this research is the subject of this
study.

THE ZONING OF ADULT EI\"T.ER.t'AINMENT BUS11NESSES


AND THE Fm.ST AMENDMENT

Beginning "With the 1976 case, Young v. American Mini Theatres,


Inc., 23 several United States Supreme Court decisions have provided
guidance as to what constitutes permissible government regulation
of the location of adult entertainment establishments, giver1 the pro-
tection provided by the Free Speech Clause of the First Amend-
ment.24 The Court has norm.ally subjected ordinances that restrict
the location of adult businesses to an evaluation under the frame-
work for content restrictions on symbolic speech set forth in the
four-part test in United States v. O'Brien. 25
Justice Powell applied the four-part O'Brien test in his plurality
opinion in Young. 26 In that case, the Court upheld a Detroit zoning
ordinance that regulated the location of adult theaters. The orcli-
nance mandated that adult theaters not locate within 1,000 feet of
any two other "regulated uses" or within 500 feet of a residential
area. The Detroit ordinance did not attempt to eliminate adult en-
tertainment; rather its aim was to disperse such businesses in an
effort to minimize so-called negative secondary effects. In uphold-

clothing) and dancer prmcimity significantly altered the message of erotic perfor-
mances. See Linz et al., supra note 22.
2S427 U.S. 50 (1976).
24See id.; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Barnes v.
Glen Theatre, Inc., 501 U.S. 560 (1991); City of Erie v. Pap's A.M., 120 S. Ct. 1382
(2000).
25391 U.S. 367, 376-77 (1968). The landmark decision sets forth a series of crite--
ria courts must consider when determining the constitutionality of government sup
pression of speech. For a restriction to pass the O'Brien test, the courts must
consider (1) whether the regulation is within the constitutional power of govern-
ment, (2) whether it furthers an important or substantial governmental :interest, (3)
whether that interest is unrelated to suppre.ssion of free e,::pression and (4) whether
the restriction on First Amendment freedoms is no greater than is essential to the
furtherance of that interest. Id.
26Young, 427 U.S. at 79-82 (Powell, J., concurring). Most important for present
purposes, the Court suggested that the Detroit ordinance passed the second prong of
the O'Brien test because it was aimed atpreservingthe stability of the city's residen-
tial and commercial neighborhoods. Id. at 73. The Court noted that a city's interest
in protecting the quality of urban life is one that must be accorded high respect. Id.

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NEGATIVE SECONDARY EFFECTS 361

ing this ordinance, the plurality opinion of the Court reaffll'Ined


the doctrine that a go\1e..'l"D.ment regulation must have a real and
substantial deterrent effect on legitimate expression before it wm
be invalidated. 27 The Court said the ordinance was not an invalid
prior restraint on protected eJ..-pression because it had neither the
intent nor the effect of suppressing speech but was aimed at con-
trolling the secondary effects caused by adult businesses on sur-
rounding uses. 2s
In another land.mark decision regarding a municipality's attempt
to control secondary effects allegedly caused by adult businesses,
City ofRenton v. Playtime Theatresi Inc., the Court upheld a Renton,
Washington, zoning ordinance that, although not banning adult
businesses altogether, did prohibit them from locating within 1,000
feet of any residential zone, church, park or school.29 The Court held
that the Renton ordinance did not restrict First Amendment rights,
as the purposes of the ordinance were unrelated to the suppression of
speech and the restrictions were the least intrusive means by which
to further the government's interests. 80 Part of the precedent set by
Renton is a three-prqng test stipulating that an ordinance must: (1)
Be content neutral and aimed only at curbing secondary effects, (2)
provide alternate avenues of communication and (3) further a sub-
stantial governmental interest. 81
Further, the Court stated for the first time that a city interested
in restricting the operation of adult businesses was not required to
show adverse impact from the operation of adult theaters in its
own community, if no such experience existed, but could instead
rely on the el..'Periences of other cities as a rationale for supporting
the passage of an ordinance. 82 The court of appeals had found that
"because the Renton ordinance was enacted without the benefit of
studies specifically relating to 'the particular problems or needs of
Renton,' the city's justifications for the ordinance were 'eonclusory

27Id. at 60.
2B[d. at 73 n.34 (plurality opinion). The Court remarked that the city of Detroit
had offered evidence that a concentration of "adult" movie theaters causes the area
to deteriorate and become a focus of crime. Further, no such relationship was found
for theaters showing other types of films. Id. This marks the first time the Court ex-
plicitly mentions the term "secondary effects.'' The Court suggests that "[i)t is this
secondary effect which these zoning ordinances attempt to avoid, not the dissemina-
tion of 'offensive' speech" that allows tl1e Court to find the Detroit ordinances con-
stitutionally sound. Id.
29475 U.S. 41 (1986).
30Jd. at 83.
31Jd.
S2Jd. at 50-53.

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Supreme Court maintained that the court of appeals had placed an un-
necessary burden of proof on the city, ruling that Renton-which had
no adult businesses-could rely primarily on e>..'J)eriences of and stud-
ies produced by the nearby city of Seattle as evidence of a relationship
between adult uses and negative seconda...-y effects. 34 Thus, the Court
ruled that the First Amendment does not require a city to conduct new
studies or produce new evidence before enacting an ordinance, so long
as the evidence relied upon is reasonably believed to be relevant to the
problem the city faces. 35
Since Renton, a number of cities, counties and states have under-
taken investigations :intended to establish the presence of such sec-
ondary effects and their connection to adult facilities. These
studies have, in turn, been shared with other municipalities and
generally serve as the basis for claims that adult entertainment es-
tablishments are causally related to harmful secondary side effects,
such as increased crime and decreases in property values. Many lo-
cal governments across the United States have relied on this body
of shared information as evidence of the secondary effects of adult
businesses. Further, in most cases, cities and other governmental
agencies have used the findings of a core set of studies from other
locales as a rationale for instituting regulation of such businesses
in their own communities.
Reeent Applications of the Secondary Effects Doctrine
In 1991, the U.S. Supreme Court began down the road to ex-
panding the "secondary effects" doctrine as a justification for a to-
tal ban on nude dancing. In Barnes v. Glen Theatre, Inc., 36 the

33 City of Renton v. Playtime Theatres, Inc., 748 F. 2d 527, 537 (9th Cir. 1984),
rer/d, 475 U.S. 41 (1986).
34Id. at 50-51. See Northend Cinema, Inc. v. Seattle, 585 P.2d 1153 (1978). In
Northend, the Washington State Supreme Court held that the city of Seattle had
provided sufficient evidence of a need for a zoning code amendment aimed at pre-
venting the secondary effects on the neighborhoods surrounding adult theaters.
This evidence Ca.Ille in the form of "a long period of study and discu.ssi011 of the prob-
lems of adult movie theaters in residential areas of the City." Id. at 1154-55. The
city offered the Washington court a report, among other things, analyzing the City's
zoning scheme and describing land uses around existing adult motion picture the-
aters. In addition, the trial court heard "e,rpert testimony on the adverse effects of
adult motion picture theaters on neighborhood cluldren and community improve-
ment projects." Id. at 1156. In Renton, the United States Supreme Court found that
the city in question was entitled to rely on ihe evidence summarized ill the Washing-
ton court's opinion. 475 U.S. at 50-53.
35Renton, 475 U.S. at 51-52
36 501 U.S. 560 (1991).

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NEGATIVE SECONDARY EFFECTS 363

enforcement of Indiana's public indecency law, which prevented to-


tally nude dancing by indirectly requiring a dancer to perform in no
less than pasties and a G-string, did not violate the First Amendment's
guarantee of freedom of expression. 37 Led by Chief Justice Rehnquist,
a plurality found the anti-nudity ordinance in question was constitu-
tional because it was aimed at protecting societal order and morality. 38
The Court had held in previous cases that such an objective repre-
sented a sufficient government interest. 39 Couching the decision as
simply supporting a constitutionally protected time, place and man-
ner restriction of expression, the plurality argued that the Indiana
statute did not proscribe erotic dancing. Instead, the Chief Justice ar-
gued, it simply ensured that any such performance would include the
wearing of scant clothing,4o
Justice Souter' s concurring opinion gave particular attention to the
notion of a state's substantial interest in combating the secondary ef-
fects of adult entertainment establishments. 41 Justice Souter stated
that the type of entertainment the Indiana statute was aimed at regu-
lating was clearly of the same character as that at issue in a number of
past decisions by both the Supreme Court42 as well as lower courts. 43
He went on to suggest that it was therefore no leap to say that live nude
dancing of the sort at issue in Banics was " ... likely to produce the
same pernicious secondary effects as the adult films displaying 'speci-
fied anatomical areas' at issue in Renton. "44 Souter then applied the
precedent set forth in Renton, stating:

In light of Renton' s recognition that legislation seeking to combat the


secondary effects of adult entertainment need not await localized proof
of those effects, the State of Indiana could reasonably conclude that
forbidding nude entertainment of the type offered at ... the Glen Thea-
tre's "bookstore" furthers its interest in preventing prostitution, sex-
ual assault and associated crim.es.'0

37Id. at 561.
88Jd. at 569.
assee, e.g., Paris Adult Theatre Iv. Slaton, 413 U.S. 49, 61 (1973).
40Barnes, 501 U.S. at 587.
41Jd at 582 /Souter, J_, concurring).
42See, e.g., California v. LaRue, 409 U.S. 109, 111 (1972); Renton v. Playtime The-
aters, Inc., 475 U.S. 41 (1986); Young v. Am. Mini Theatres, Inc., 501 U.S. 560
(1991).
43Sec, e.g .. United States v. Marren, 890 F_2d 924, 926 (?th Cir. 1989) (arguing
that prostitution is associated with nude dancing establishments); United States v.
Doerr, 886 F.2d 944, 94.9 {7th Cir. 1989) (same).
44Barnes, 501 U.S. at 584.
45Jd.

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364 6 COMM. L. & POL'Y 355 (2001)

Thus, Justice Souter wrote that municipalities could assume that


negative secondary effects result from nude dancing establishments
when justifying regulation of such ~"J)ression.
The Supreme Court most recently addressed the constitutional-
ity of regulating adult entertainment in City of Erie v. Pap's A.M. A
fractured majority upheld an Erie, Pennsylvania, ordinance that,
like the statute considered in Barnes, required a dancer to wear at
least pasties and a G-string during a performance.46 A majority of
five Justices agreed that the case called for the application of the
O'Brien test. Further, a majority held that the Erie ordinance was
aimed at the important government interest of combating the
harmful secondary effects associated with nude dancing.47 A plural-
ity of four justices-not a majority of the Court-held that Erie had
met this burden by relying on the evidentiary foundation48 set
forth in both Renton and Young. 49

46 120 S. Ct. 1382, 1384 (2000). In Barnes, Justice Souter used the secondary ef-
fects doctrine as ajustification of the anti-nudity ordinance. 501 U.S. at 584 (Souter,
J., concurring). In Pap's, the city adopted Justice Souter's reasoning and argued
that the same devaluation of the surrounding areas attributed to adult businesses
can be attributed to establishments featuring live nude entertainment. See 120 S.
Ct. at 1394. The city argued that the government's vital interest in protecting and
preserving the deSirability of residential neighborhoods and business districts is a
sufficient justification for the ordinance's incidental encroachment on protected ex-
pression. See id. at 1394..
47Id. at 1394. The Court cited the Renton precedent allowing municipalities to
rely on secondary effects evidence produced by other, similar municipalities to fulfill
the evidentiary burden. Id. None of the justices in the fractured majority eJ!:plained,
however, how the requirement of wearing pa.sties and a G-string would in fact re-
duce prostitution, sexual assaults or other problems associated with places where
dancers appear nude.
48Jd. Justice Scalia, joined by Justice Thomas, concurred with the Court's major-
ity opinion, but for different reasons. The justices held that the Erie ordinance pro-
hibits not merely nude dancing but the act of going nude at all-UTespective of
whether it is engaged in for expressive purposes. Id. at 1398 (Scalia, J., concurring).
He found the statute constitutionally permissible because it was a general law regu
lating conduct and not specifically direct.ed a.t expression. Id. at 1401. AF, such, the
ordinance was not subject to First Amendment scrutiny at all. See id. at 1401--02.
Justice Scalia suggested that there was no need to consider the presence or absence
of "secondary effects" because the government was well within its rights in regulat-
ing non-expressive behavior. Id. The opinion of Justice Scalia, when combined with
that of Justice O'Connor, with whom Chief Justice Rehnquist, Justice Kennedy and
Justice Breyer joined, left the Court with a G-3 majority that the law was
consit.itutional. Yet, there was no controlling opinion. In other words, the Court
agreed that Erie can regulate nudity, but could not agree on why.
49Renton, 475 U.S. at 83; Young, 501 U.S. at 564.

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NEGATIVE SECONDARY EFFECTS 365

Justice Souter's Parl:ial Dissent in Pap's

Only a plurality of justices agreed that the city of Erie had demon
strated evidence of a compelling government interest. Justice Souter
disB.c,a:reed. 50 In Barnes, he opined that the government could assume
that "pernicious secondary effects" would result from the presence of
nudedancingestablishments. 51 InPap's, however, Justice Souter de-
manded that cities such as Erie, interested in regulating nude dancing
on the basis of adverse secondary effects, should be required to provide
germane evidence of a relationship between nude dancing and these
secondary effects. 52 Ruefully, Justice Souter stated:

Ca:reful readers ... will of course realize that my partial dissent rests on a
demand for an evidentiary basis that I failed to make when I concurred
in Barnes . ... I should have demanded the evidence then, too, and my
mistake ealls to mind Justice Jackson's foolproof explanation of a lapse
of his own, when he quoted Samuel J obnson, "Ignorance, sir, igno--
rance." McGrath v. Kristensen, 340 U.S. 162, 178 (1950) (concurring
opinion). I may not be less ignorant of nude dancing than I was nine
years ago, but after many subsequent occasions to think further about
the needs of the First Amendment, I have come to believe that a govern~
ment must toe the mark more carefully than I first insisted. I hope it is
enlightenment on my pa.rt, and acceptable even if a. little late. 53

In his opinion, Justice Souter questions the evidence used by mu


nicipalities of a relationship between adult businesses and negative
secondary effects, concluding that such a relationship can no longer
be presumed from past studies. 54 In support of his position, Justice
Souter cited an amici brief that contained a condensed summary of
the critique of eJtlsting secondary effects studies reported below. 55

56Jd. at 1402 (Souter, J., concurring in part and dissenting in part).


1HBarnes, 501 U.S at 584 (Souter, J., concurring).
z2 120 S. Ct. 1382 at 1408-04 (Souter, J., concurring in part and dissenting in
part).
5:JJd. at 1405-06.
54.Jd.
56Brief for First Amendment Lawyers Association at 16-23, id. (No. 98-1161).
Justice Souter stated:
The proposition thnt t.he presence of nude dancing establishments increases the inei
dence of prostitution and violence is amenable to empirical treatment., nnd the city
councilors who enacted Erie's ordinance are inn position to look to the facts of their
own com.mumty' s expenence as well as to e:,q:,enences elsewhere. Theu- failure to do so

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Evaluating the Validity of Seoond~r, Effrets Studies

Since the secondary effects doctrine appears to be e:irpanding, it is


imperative that it be based on solid evidence that the operation of an
adult entertainment business has a deleterious effect on the sur-
rounding community. Unfortunately, when municipalities have con-
ducted studies in the past, there has not been a set of methodological
criteria or minimum standards, to which the cities were required to
adhere. Vvithout such standards, cities may be relying on flawed da-
tabases. This problem is further compounded when courts allow pre-
vious studies, conducted in other cities, to supplant data collected in
the city where the ordinance is being proposed. A flawed study repli-
cates errors across localities. It mak.es little sense to generalize to the
e:,..rperiences of other cities on the basis of what may be an :invalid in-
vestigation in the first place.
The basic requirements for the acceptance of scientific evidence,
such as secondary effects studies, were prescribed by the Supreme
Court in the 1993 case of Daubert v. Merrell Dow Pharmaceuticals,
Inc. 66 In Dauberi, the Court held that there are limits on the ad-
missibility of scientific evidence offered by "e:1cpert witnesses" in
federal courts. The Court noted that scientific knowledge must be
grounded in the methods and procedures of science and must be
based on more than subjective belief or unsupported speculation. 57
Offering observations as to how this connection can be made, the
Court provided a list of factors that federal judges could consider in
ruling on a proffer of e:,;:pe:rt scientific testimony, including the no-
tion of falsifiability, peer review and publication, error rate and ad-
herence to professional standards in using the technique in
question. 58
Since a core set of studies has been and continues to be relied upon
by hundreds of local municipalities as evidence of negative secondary
effects, a central concern must be the methodological rigor, and
therefore trustworthiness, of these studies. This is particularly true
when the Supreme Court requires that a municipality establish that
such regulations are necessary to further the governmental interest..

councilors who enacted Erie's ordinance are in a position to look to the facts of the:ir
own community's e:i::perience as well as to ei::penences elsewhere. Their failure to do so
is made all the cleurer by one of the amicu,s briefs, largely devoted to the argument that
scientifically sound studies show no such correlation.
Id. (Somer, J., dissenting).
66 509 U.S. 579 (1993).
57Id. at 590.
58Jd. at 593--95.

_________________________________________________
,

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NEGATIVE SECONDARY EFFECTS 367

of ameliorating secondary effects and that such regulations are no


broader than is essential to the furtherance of such interest. 59
To evaluate the validity of the secondary effects studies cited by
communities across the country, this article will abstract and analyze
the methods and major empirical findings in the relevant research.
With few exceptions, the methods mostfrequentlyusedin these stud-
ies are seriously and often fatally flawed. Specifically, these studies do
not adhere to professional standards of scientific inquiry and nearly all
universally fail to meet the basic assumptions necessary to calculate
an error rate-a test of the reliability of findings in science. More im-
portantly, those studies that are scientifically credible demonstrate ei-
ther no negative secondary effects associated with adult businesses or
a reversal of the presumed negative effect.

The Core Set of Frequently Cited Scientific Studies


of Secondary Effects
Amassed for this study were a large body of laws enacted for the
regulation of adult entertainment businesses and as many as possi-
ble of the empirical and non-empirical reports examining potential
secondary effects of such businesses produced or purportedly relied
upon by municipalities considering the issue. Often, the laws-usu-
ally municipal ordinances-contain "preambles" that specifically set
forth which of the various "secondary effects studies" the municipal-
ity is relying on as justification for enacting the particular regula-
tion. Presumably, these studies are listed in order to comply with the
Renton requirement that a municipality rely upon evidence "reason-
ably believed to be relevant to the problem that the city addresses. '160
The interest is in examining the methodological legitimacy of ev-
ery "study" cited by municipalities as containing evidence of the rela-
tionship between adult entertainment businesses and negative
secondary effects. Several steps were taken to obtain as many such
studies as possible. First, several attorneys known for their experi-
ence and expertise in the arena of adult business regulation were
contacted and asked to provide lists and, when possible, printed cop-
ies of studies that they were aware had been cited in municipal and
state zoning ordinances. Second, the citations found in each of the
obtained studies and zoning ordinances were scanned for additional
studies on secondary effects. Finally, several additional individuals

59See Renton v. Playtime Theater, Inc., 475 U.S. 41 (1986); Young v . .Am. VJ.ini
Theatres, Inc., 427 U.S. 50 (1976); United States v. O'Brien, 891 U.S 367 (1968)
GDRenton. 4 75 U.S. at 51-52 n.26.

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368 6 CO:MM. L. & POL'Y 355 (2001)

that have e~ert knowleC1.e,oe in the area of adult business regulation


were asked to supplement the list of "studies. "61 In all, a total of 107
reports were eventually obtained. To be included in the analysis,
each report must have been. cited by at least one municipality as evi-
dence of a relationship between adult entertainment businesses and
negative secondary effects. .Although it is more than likely that not
every single "secondary effects study" is included in this review, the
extensive literature search nevertheless resulted in a large and, more
importantly, a representative number of such reports. This study
has located, collected and analyzed the vast majority of "studies"
that communities purport to rely upon when enacting regulations of
adult businesses.s2
First considered in detail are the four most frequently cited (and
relied upon) studies of secondary effects: Indianapolis, Indiana
(1984),68 Phoenix, Arizona (1979),64 Los Angeles, California (1977) 66
and St. Paul, Minnesota (1978).66 As can be seen in Table 1, these
studies have been cited as evidence of the relationship between adult
entertainment businesses and negative secondary effects by no less
than 27 different municipalities. The problems that have been found
mthese four reports in regard to misunderstandings of their "find-
ings" and methodological failings (discussed in detail below) pertain
as well to the next sbc most frequently relied-upon reports. Discussed
next are these six studies, in brief, at the end of the review of the four

61All of the reports included in the analysis were obtained by cont.acting the spe-
cific communities and municipalities that origin.ally sponsored or produced them.
G2It should be noted that although the study began with 107 municipal reports ad-
dressing the relationship between adult entertainment businesses and negative sec
ond.ary effects, and although a large percentage of these claim to report "scientific"
evidence of such a relation.ship, this analysis found only 29 of these studies to con-
tain empirical data. A number of the remaining 78 reports simply contained the
minutes of ci~r planning committee meetings during which options for the regula-
tion of adult businesses were discussed. Others simply contained samples of arrest
reports from inside adult entertainment businesses. Needless to say, such informa-
tion did not meet even the most basic criteria for empirical evidence. However, such
studies have been used (often consistently) as representing empirical evidence of the
relationship between adult entertainment businesses and negative secondary ef-
fects.
630ITY OF INDIANAPOLIS, INDIANA, ADULT ENTERTAINMENT BUSINESSES IN
INDIANAPOLIS-AN ANALYSIS (1984).
64 CITY OF PHOENIX, .AmzONA, RELATION OF CRIMINAL ACTMTY AND ADULT
BUSINESSES (1979).
650ITY OF Los ANGELES, CALIFORNIA, STUDY OF THE EFFECTS OF THE
CONCENTRATION OF ADULT ENTERTAINMENT ES'l'.ABUSHMENTS IN THE CITY OF Los
ANGELES (1977).
66 CITY OF ST. PAUL, Mrn'NESOT.A, NEIGrIDORHOOD DETERlORATION AND THE
LOCATION OF ADULT ENTERT.AD.IJMENT ESTABLISHMENTS IN ST. PAUL (1978).

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NEGATIVE SECONDARY EFFECTS 369

TABLE 1: TEN MOST FREQUENTLY REFERENCED snmms AND


MUNICIPALITIES THAT REFERENCED THEM IN DRAFTING
LEGISLATION REGULATING ADULT BUSINESSES

l. Indianapolis, Ind. (1984):


Dallas (1986), The Bronx (1995), Ramsey (1990), Manchester, N.H., Brooklyn, Minn.
Beaumont (19B2), St. Paul, Minn. (1987/1988), Tim.es Square, N.Y. (1993), Newport News,
Va.. (1996), Kansas City, Mo. (1998), Falcon Heights, Minn. (1994), Fridley, Minn.,
Brooklyn Park, Minn., :Manatee County, Fla., Lynnwood, Wash. (1990), Oklahoma City
(1986), New Hanover County (1989), Rochester/Olmsted (1988), Seattle (1989), St. Cloud,
Minn. (1982), St. Croix (1993), St. Paul (1994)
2, Phoenix, Ariz. (1979):
Dallas (1986), The Bronx (1995), St. Paul (1994), Ramsey (1990), Manchester, N.H.,
Brooklyn, Minn., St. Paul, Minn. (1987/1988), Times Square, N.Y. (1993), Newport News,
Va. (1996), Minnesota (1989), Kansas City, Mo. (1998), Falcon Heights, Minn. (1994),
Fridley, Minn., Brooklyn Park. Minn., Manatee County, Fla., New Hanover County (1989),
Rochester/Olmsted (1988), St. Cloud, Minn. (1982)
3. Los Angeles, Cal. (1977):
Dallas (1986), The Brom: (1995), Broward County, Fla., Times Square, N.Y. (1998),
Newport News, Va. (1996), Garden Grove (1991), Bellevue, Wash. (1987), Manhattan
(1994), Seattle (1989), St. Cloud, Minn. (1982), St. Paul, Minn. (1994), St. Croix (1998),
Brooklyn Park, Minn.
4. St. Paul, Minn. (1987):
Dallas (1986), Ramsey (1990), St. Paul, Minn. (1987/1988), Times Square, N.Y. (1993),
Minnesot.a (1989), Bellevue, Wash. (1987), Brooklyn,, Minn., Falcon Heights, Minn. (1994),
Brooklyn Perk, Minn., Manatee County, Fla., Lynnwood, Wash. (1989), Rochester/Olmsted
(1988)
5. Austin. Tex. (1986}:
Dalls.s (1986), The Bronx (1995), Mnnch.eater, N.H., Broward County, Fla., Kansas City,
Mo. (1998), Manatee County, Fla., Manhattan (1994), Seattle (1989), St. Cloud, Mimi..
(1982), St. Paul. Minn. (1994)
6. St. Paul, Mhm.. (1987/1988):
Brooklyn, Minn., Times Square, N.Y. (1993), Minnesota (1989), Kansas City, Mo. (1998),
Falcon Heights, Minn.. (1994), Fridley, Mmn., Rochester/Olmsted (1988), St. Cloud, Minn.
(1982), St. Paul, Minn. (1994)
7. .Amarillo, Te:. (1977):
Dallas (1986), Beaumont (1982), Newport News, V11. (1996), Manatee County, Fla., New
Hanover County (1989), St. Crom (1998), St. Paul, Minn. (1994)
8. Detroit, Mich. ( 1972):
Beaumont (1982), Times Square, N.Y., (1993), BellB\llle (1987), New Hanover County
(1989), St. Croix (1993)
9. Beaumont, Te::::. (1982):
Dallas (1986), Newport News, Va. (1996), Manatee County, Fla., New Hllll.Over County
(1989), St. Croi:'. (1993)
10. Keni, Wash.. (1982):
Des :Wwines, Wash.. Bellevue, Wash. (l9B7), Lynnwood, Wash. (1990), Seattle (1989)

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most frequently cited studies. Accordingly, the concerns that are out-
lined below apply to all of the "top ten" relied upon "secondary ef-
fects studies." And, virtually all of the reports that have been
analyzed have these same failings, often because they themselves re-
lied upon earlier "studies" that contained the same flaws discussed
beiow.

11m BASIC REQUIREMENTS FOR THE ACCEPTANCE


OF SCIENTIFIC EVIDENCE

In an attempt to prevent the proliferation in courtrooms of "junk


science," the United States Supreme Court :in Daubert held that
there are limits on the admissibility of scientific evidence offered by
"expert witnesses" in federal courts. 67 The Court opined that scien-
tific knowledge must be grounded "in the methods and procedures of
science" and must be based on more than "subjective belief or unsup-
ported speculation. "68 Thus, the Court said, "the requirement that
an expert's testimony pertain to 'scientific knowledge' establishes a
standard of evidentiary reliability." 69 In a footnote, the Court ob-
serves that "[i]n a case involving scientific evidence, evidentiary reli-
ability will be based upon scientific validity. ''70 Offering "some
general observations" as to how this connection can be made, the
Court provided a list of factors that federal judges could consider in
ruling on a proffer of expert scientific testimony: (1) The "key ques-
tion" is whether the theory or technique under scrutiny is testable,
borrowing Karl Popper's notion offalsifiability. 71 (2) .Although publi-
cation was not an absolute essential, the Court noted that peer re-
view and publication increased "the likelihood that substantive flaws
in methodology will be detected." 72 (3) Error rate. 78 (4) Adherence to
professional standards in using the technique in question. 74 (5)
Finally, though 11Lot the sole or even the primary test, general accep-
tance could "have a bearing on the inquiry. ''75
VVh.ile it may not be necessary to hold municipalities to each of
these considerations when weighing the validity of evidence substan-

67Daubert v. Merrell Dow Phann., Inc., 509 U.S. 579, 590 (1993).
68Id. at 599.
69Id. at 590.
7CJid. n.S.
71 See id. at 593 (citing KARL POPPER, CONJECTURES AND REFUTATIONS S7 (5th ed.
1989)).
72Jd.
78 See id. at 594.
74 See id.
75Id. at 593-94.

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NEGATIVE SECONDARY EFFECTS 371

tiating the eristence of seconda..-y effects research with adult busi-


nesses) at least two factors are indispensable. Jt IS at least a testable
proposition that secondary effects may re~~t from adult establish-
ments, or else a study would not have been undertaken in the first
place. It can be further presumed that a lengthy peer review and pub-
lication process may be unlikely due to the sense of urgency when
communities tend to address these issues. In addition, the general
acceptance requirement is held to have a bearing but is not a11
absolute consideration. The third and fourth factors, however, the
calculation of an error rate and adherence to professional standards
in using techniques or procedures, need to be applied to these studies
in order to ensure '' evidentiary reliability." Without this reliability,
there is no basis to determine whether there is a substantial or im-
portant governmental interest involved, whether a specific piece of
legislation is "necessary" in order to further that interest, or
whether it is "reasonable" for a municipality to rely upon such a
study as a basis for enacting legislation. 76
In a scientific study, the error rate refers to the probability of ac-
cepting a result as true, when in fact it is false. 77 The rate is an indica-
tion of the reliability of a finding. An error rate is determined by first
calculating an estimation of a population characteristic (a statistic)
that summarizes the data that have been collected and then asking
how likely it is that that statistical value would be obtained by chance
alone. The error :rate is the degree of chance a scientist will allow. In
the social sciences, it is conventional to set the error rate at five per-
cent or less (that is, a researcher will tolerate an e:rror rate of five
times out of 100 that the results may be obtained by chance). 7B
Unless certain assumptions are met, statistical tests cannot be ap-
plied to the data, and an error rate cannot be calculated. Most impor-

76This is perhaps the most important notion underlying this research. Results
suggesting no reliable and/or valid evidence of a relationshlp between negative sec-
ondary effects and adult entertainment businesses would mean that the courts
would need seriously to reconsider whether municipalities indeed have a substantial
interest in regulating such uses. At the very least, it would suggest that most, if not
all, municipalities with codified restrictions on adult uses have based their justifica-
tion of such restrictions (according to the requirements set forth in Young and
Renton) on inaccurate data.
77 See JACOB COHEN & PATRICIA COHEN, APPLmD MULTIPLE REGRESSION/
CORRELATION ANALYSIS FOR THE BEIIAVIORAL SCIENCES 166-76 (2d ed. 1983); DAVID
C. Homu., STATISTICAL METHODS FOR PSYCHOLOGY 349-50 (4th ed. 1997);
GEOFFREY KEPPEL, DESIGN AND ANALYSIS: A RESEARCHER'S liANDBOOI~ 164-65 (8d
ed. 1991); RODEP.T R. PAGANO, UNDEilSTANDING STATISTICS IN' THE BEHAVIORAL
SCIENCES 215-16, 384 (5th ed. 1998).
?BSee COHEN & Co:EIEN, supra note 77, at 21.

__l
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tant of these assumptions in regard to, for example, survey research,


is that the units of analysis (for example, survey respondents) are
randomly selected from the population, or in regard to an experi-
ment, that the units of analysis (for example, subjects) are randomly
assigned to a."Perimental and control or comparison groups. 79 The
results of properly conducted 9A'Periments and surveys are always
couched in terms of an error rate.
In many cases, especially in field research, it is not possible to ran-
domly assign units of analysis to an experimental group and a control
group. 80 Thisisuniversallytrueof"secondaryeffects" studies.Bl When
this is the case, adherence to a set of professional standards that have
been devised by scientists in a particular area of inquiry to insure
methodological integrity and thus the validity of a study is all the more
necessary. These standards vary somewhat depending on the area of
inquiry or social science discipline, but they are generally known as
professional standards for conducting "quasi-experiments." 82

Four Criteria for Insuring a Seien'tificall:y Valid


S'tu.d:y of Secondary Effects

The majority of the secondary effects studies reviewed in this arti-


cle generally assume the following form. Researchers assemble crime
statistics and calculate average property values and other general
measures of neighborhood quality or deterioration (for example, res-
idential turnover rate, local tax revenue, etc.) in the geographical
area surrounding adult entertainment businesses. In a few studies
these measures are compared to other areas that do not contain adult
businesses . .Another popular data gathering method is to perform a
survey in which residents or business owners are asked for their
opinions of the likely impact of adult entertainment businesses on
their neighborhoods.
Four criteria are crucial in insuring that a scientifically valid study
of secondary effects has been conducted. First, in order to insure accu-
rate and fair comparisons, a control area must be selected that is trnly
"equivalent" to the area containing the adult entertainment busi-

79See EARL B.A.BBm, 'l'HE PRACTICE OF SOCIAL RESEARCH 202-10 (8th ed. 1998);
ROYCE A. Sn>JGLETON, JR. ET AL., APPROACHES TO SOCIAL RESEARCH 136-51 (2d ed.
1993).
BOSee DON.ALD T. CAMPBELL & JULIAN C. STANLEY, '.EXPERIMENTAL AND
QUASI-EXPEI?.IMEN'l'AL DESIGNS FOR RESlllARCH 34 (1963).
81 0bviously, it is :not possible randomly to assign adult businesses to some neigh-
borhoods and hold other neighborhoods as controls.
82See CAMPBELL & STANLEY, supra note 80, at 34-71.

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ness. 83 Since most studies of secondary effects attempt to uncover in-


creases in crime or neighborhood economic deterioration
professional standards dictate that the control (non-adult) .site must
be comparable (matched) with the study (adult) site on variables re-
lated to crime and deterioration. Of particular importance when
studying crime is that the study and control areas are matched for vari-
ables such as ethnicity and socioeconomic status ofindividuals in both
areas. Additionally, economic factors, such as median home value and
total individuals employed and unemployed, should be comparable in
both areas. A concerted effort should also be made to include only com-
parison areas with similar real estate market characteristics including
property values, rental rates and proportion of unused commercial
and industrial space in either area. The study and control areas in a
crime study should be approximately equal in total population.
Finally, because of the effect of businesses that serve alcoholic bever-
ages on :increases in crime and neighborhood deterioration, the study
and control area should be matched on the presence of alcohol-serving
establishments. 84
Second, a sufficient period of elapsed time, ideally both prior to
and following the establishment of an adult entertainment business,
is necessary when compiling data in order to ensure that the study is
not merely detecting an erratic pattern of social activity. Most meth-
odologically sound, quasi-experimental, time-series analyses rely on
at least a one-year period prior to and after the introduction of the
event under study to test for significant changes. Generally, the lon-
ger the time period before and after the event under consideration,
the more stable (and more valid) the estimates of the event's effects
tend to be. 85
Third, the crime rate must be measured according to the same
valid source for all areas considered. BG Studies on seconda:ry effects
typically focus on two general types of crime in relation to adult en-
tertainment businesses. These two types of crime are "general crimi-
nal activity" (including, but not limited to, robbery, theft, assault,
disorderly conduct and breaking and entering) and '1crimes of a sex-
ual nature" (including, but not limited to, rape, prostitution, child
molestation and indecent public &""J>Osure). It is especially important
that the measurement of these crimes is based on the same informa-
tion source for both sites and throughout the entire study period. For

83See BABBIE, supra. note 79, at 213-14.


B4Sec, e.g., CITY OF ST. PAUL, MINNESOTA, supra note 66.
85See SINGLETON ET .AL., supra note 79, at 213-41.
86See CAMPBELL & STAl-n.EY, supra note 80, ai 5, 9.

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374 6 COMM. L. & POL'Y 355 (2001)

example, if the study area measures crime by the number and type of
calls made to the police department, the control area must also rely
on such a measure when the two areas a.re compared.
In addition, the crime information source must be factually valid
and reliable, such as a daily log kept by police or a compilation of the
number of arrests. Many studies claim to measure area crime by ask-
ing survey respondents about their estimates ofthe likelihood ofbeing
a victim of crime. Such data are not preferred because of their subjec-
tivity and as such, cannot be trusted as a valid representation of actual
crimi.."l.81 activity in a particular area. Social scientists should hesitate
to rely upon such "evidence'' to establish a causal link between adult
businesses and secondary effects. The Daubert standard suggests such
information may not have sufficient "trustworthiness'' to be admissi-
ble in a federal court. However, if such subjective opinion research on
crime is to be undertaken, it should conform to the standards for con-
ducting reliable and valid survey research.
Researchers must also acknowledge any change in police surveil-
lance techniques once an adult entertainment business has been es-
tablished in a particular community. Obviously, increased
surveillance of an area simply because an adult business is located
there will have an impact. on the amount of crime detected by the po-
lice. If increased police surveillance and the opening of an adult busi-
ness in a particular area are confounded in this way, it is impossible
to tell whether crime has increased due to the presence of the adult
entertainment business or increased surveillance police discovering
more crime.
Finally, survey research, if relevant to the question at all, must be
properly conducted. Most survey research in this area imrolves asking
real estate professionals, local property o'IJVD.ers, law enforcement offi-
cers and/or community residents to estimate the effect of the presence
of an adult entertainment business on a particular community. Less
frequently, surveys of citizens, perception of crime and victimization
are also undertaken. While suqjective surveys may provide a sense of
the general opinion of a particular group regarding the impact of adult
entertainment businesses on SU1Tounding neighborhood property
values or criminal activity, this kind of survey does not provide sound
empirical evidence of any true relationship between these businesses
and their actual impacts on the surrounding areas. For instance, while
the opinions of real estate professionals are legitimate and important
in regard to other matters, they have a particularly strong interest in
the issue and as such, may produce biased results.
Sunrey evidence is not comparable to, nor can it replace, the evi-
dence supplied by objective comparisons of, for e::i::am.ple, property

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NEGATIVE SECONDARY EFFECTS 375

values and/or crime statistics compiled by the police within areas


containing adult entertainment businesses, with property values or
crime statistics within areas containing no such businesses. Such a
comparative analysis is the preferable social scientific means by
which to establish a relationship between the presence of adult en-
tertainment businesses and either decreases in property values or in-
creases in crime for the surrounding areas.
Even if some survey research may be relevant to the issue at
hand-although we doubt whether it truly is-it must be properly con-
ducted in order for the researcher to calculate an error rate. Profes-
sional standards do exist for performing methodologically valid social
scientific survey research so that it possesses some degree of reliability
and trustworthiness. Adherence to these standards is essential if re-
searchers hope to obtain legitimate unbiased survey results. First, it is
important to ensure that a random sample of potential respondents is
included in the study. a7 Second, a sufficient response rate must be
reached, and those who do respond must not be a biased sub-portion of
the sample.as Finally, there must be a sufficient number of respon-
dents to provide a stable statistical estimate. 89

THE FOUR MOST FREQUENTLY CITED STUDIES

The four most frequently cited studies and the degree to which
they are scientifically valid according to the criteria laid out above
are summarized in Table 2. The studies are described below, includ-
ing their findings and conclusions as well as their methodological
strengths and weaknesses, in reverse order of how often they have
been cited by municipalities.

St. Paul, Minnesota (1978)90

This study represents the most methodologically sound of all of


the empirical research reviewed. Ironically, the St. Paul study does
not claim to have found any support for the mdstence of a relation-
ship between semally oriented adult entertainment businesses and
negative secondary effects.
The study was methodologically stronger than most others for at
least two reasons. First, the researchers eJ:amined all 76 census

87See BABBm, supra note 79, at, 176-82.


sssee id. at 240.
B9See id.
9D8ee CITY OF ST PAUL, supra note 66.

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TABLE 2. HOW THE FOUR IUOST FREQUENTLY REFERENCED STUDIES FULFILL THE CRI'rERIA NECESSARY FOR
VALID RESEARCH CONCERNING SECONDARY EFFECTS

Evidence of
Study and Control Change in negative
Are!!B Properly Valid Measures of police Correct survey secondary
Criteria Matched Crime Statistics Sufficient Time Lag surveillance methodolol!Y effects
Study
Indianapolis, Ind. Significant Messures appear Ueed only a 3-year average No change Used random sample of Contains
(l986) differences in valid.(+) fur crime rates and in police real estate appraisers. evidence both
population size, property values. No surveillance Though only asked for for and against
zoning mix, and measures taken prior to mentioned. reaction to a a relationship.
property value. (-) existence of adult (+) hypothetical scenario.
businesses. (-) (+)
Phoenix, Ariz. Significant MeaBures appear No significant time series No change No survey data Contains some
(1979) differences in valid.(+) data considered. No in police collected. (NA) equivocal
average income and measures taken prior to surveillance evidence of a
age of housing stoclt. existence of adult mentioned. relationship.
(-) businesses. (-) (NA)
Los Angeles, Cal. AI.easweze Measures appear Data from over a six year Admit to Used completely Contaii1s
(1977) comparable. ( +) valid.(+) period were considered. "stepped biased, nonrn.ndom absolutely no
Duringthattimeanumber up" police sample of local objective
ofbueinesees both opened surveilla.nce. residents and reel evidence of a
and closed. ( +) (-) estate profeesionrus relationship.
who lived or worked
with.in 600 feet of an
adult business. (-)
St. Paul, Minn. Areas were Did not consider Data from over a six year Did not No survey data Contains
(197B) comparable. ( +) crimeaea period were considered. consider collected. (NA) absolutely no
variable. (NA) During that time a number crime as a evidence of a
of businesses both opened variable. rnlalionship.
and closed. ( +) (NA)

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NEGATIVE SECONDARY EFFECTS 377

tracts within the St. Paul region. The authors compared all tracts
containing adult entertainment establishments with all of those that
did not.4..s such, the study e:r..amined the entire geographical "study
universe," negating the need for random assignment of control areas
or the appropriate matching of selected control areas to the study
a:rea. Second, the study, which compared levels of neighborhood der
terioration for study and control areas, maintained a substantial
time lag between the first measures of deterioration and the second.
Deterioration was determined by examining crime counts, housing
values and market and legal influences over the study period. There-
fore, changes in neighborhood climate between the first and second
measures are more likely representative of reliable neighborhood
changes rather than erratic fluctuations in social activity.
The most important aspect of this study is that it found absolutely
no relationship between sexually oriented businesses and neighbor-
hood deterioration. In fact, the study found that the only factor that
was predictive of neighborhood deterioration was whether an alco-
hol-serving establishment was operating within the area No rela-
tionship was found, however, between neighborhood deterioration
a:nd the presence of establishments that both served alcoholic bever-
ages and offered live nude entertainment.
Los Angeles, California (1977) 91
This study is perhaps the most often incorrectly referenced of any
empirical research investigating the effects of adult-oriented busi-
nesses on surrounding areas. In fact, although it is the third most re-
lied-upon piece of research that was found supposedly establishing
the relationship between adult-oriented businesses and negative so-
cial repercussions, the researchers actually never claim any signifi-
cant support for such a connection.
The study report consists of four parts. In the first part of the
study, the researchers openly admit that they found no evidence of a
relationship between the operation of adult entertainment busi-
nesses and potential negative effects. These conclusions were based
on the results of a comparison of the average property value changes
for five study areas and four control areas. Each of the five study ar-
eas was chosen because it contained a known cluster of adult enter-
tainment businesses. The four control areas v,rere chosen because of
their proximity and supposed similarity to at least one of the study
Sl'eas and because they did not have an adult entertainment business

91See CITY OF Los P.NGELES, supra note 65.

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378 6 COMM. L. & POL'Y 355 (2001)

operating within their borders. Afl of the study and control areas
were in Hollywood, North Hollywood or Studio City.
The researchers reported that it was difficult to find any consis-
tent increase or decrease in property values associated with adult
businesses. Results of the comparisons found that for some study
and control area comparisons, there was a far larger decrease in the
control (non-adult) area. Such a result is contrary to the assumption
underlying the secondary effects doctrine (that adult establishments
themselves cause a decrease in property values). Similarly, at least
one study (adult) areas increased in value by more than 400% over
their comparable control (non-adult) area. Again, this result is di-
rectly opposite to what one would eJ,.'Pect to see by assuming a con-
nection between adult businesses and secondary effects. Given these
objective findings, the researchers stated that there is " ... insuffi-
cient evidence to support the contention that concentrations of sex
oriented businesses have been the primary cause of these patterns of
change in assessed valuations between 1970 and 1976." 92 It seems
that those who have incorrectly referenced this study as supporting
the relationship between adult entertainment businesses and lower
property rates have simply disregarded the preceding statement by
the study's authors.
The second part of the Los Angeles study claimed that survey re-
sults suggest that public opinion is strongly opposed to the operation
of adult businesses. Such a" study" does nothing more than attempt to
gauge subjective opinions and does not then serve to answer the more
relevant question of whether adult businesses actually cause second-
ary effects. In addition, even in this subjective endeavor, the research-
ers failed to adhere to minimum professional standards by failing to
conduct the research in accordance with proper survey tech-
niques-most importantly) they failed to obtain a random sample of re-
spondents. Without adherence to the requirement that a random
sample ofrespondents be obtained, the study authors cannot calculate
an error rate, and the reliability of the results cannot be determined.
Instead, the Los Angeles study authors are left V\ri.th anon-random sm-
vey of the opinions of potentially biased property owners and real es-
tate professionals who each lived and/or worked within 500 feet of an
adult entertainment business. Such a '1 sUI"'\rey" offers no insight as to
whether adult establishments engender secondary effects and is not
even representative of the broader public opinion on the issue.

92Id. at 25.

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NEGATIVE SECONDARY EFFECTS 379

In the third part ofthe Los Angeles study, the researchers openly ac-
knowledge that they found no significant differences in crime rates be-
tween the census tracts encompassing the areas containing adult
entertainment businesses and areas containing no such establish-
ments. This part ofthe study consisted of an examination of the crime
and population statistics for each of the census tracts containing clus-
ters of adult entertainment businesses. Only tracts containing the
clusters of adult businesses considered within the study areas for the
first part of the study (discussed above) were considered. These data
were then compared to those obtained from the census tracts contain-
ing each of the comparison control (non-adult) areas used in the first
part of the study. Both sets of data were analyzed and compared over
time in order to determine any sjgnifi.cant differences concerning
crime rates. The study authors concluded that in general there were
no significant differences in crime rates between the census tracts en-
compassing the study (adult) and control (non-adult) areas and that
no firm conclusions relevant to the study could be developed.
The fourth and final part of the Los .Angeles study involved a "spe-
cial" police study ofthe areas ofHollywood containing clusters of adult
entertainment businesses. However, the researchers failed to adhere
to even the most basic and rudimentary professional standards by fail-
ing to attempt to make a comparison of crime statistics in these areas
with those in comparable control (non-adult) areas. The researchers
failed to compare the areas surrounding adult businesses 'With compa-
rable control (non-adult) areas. In addition, the researchers admitted
to a substantial change in police surveillance of the area under study,
which renders any results at least suspect and most likely meaning-
less. Although thefmdings ofthis study suggested high levels of crimi-
nal activity within these clusters, any implication that this is
connected to the presence of adult businesses is invalidated by the fact
that the researchers admitted to "stepped up" surveillance within
these areas. Put s:imply, the police most likely found greater amounts
of crime in the adult establishment areas because they were t:rying
harder to find it. These failings and problems take this portion of the
study outside of the reliability criterw. of Daubert discussed above.

Phoenix, Arizon.a (1979)93

This report presents the fin.dings of a study performed in Phoenix


that attempted to examine the relationship between adult entertain-

98See CIT'i." OF PHOENIX, supra. note 64.

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380 6 COM:M. L. & POL'Y 355 (2001)

ment businesses and local crime rates. This study claimed to fmd
higher overall crime rates in study areas containing adult-oriented
businesses compared to control areas containing no such businesses.
However, the evidence of negative secondary effects was equivocal at
best. In addition, the study fails to adhere to professional standards
because the control sites are not sufficiently comparable with the
study site and there was not a sufficient period of time for the collec-
tion of data, both prior to and following the establishment of an adult
entertainment business. The time control is necessary to ensure that
the study is not merely detecting an erratic pattern of social activity.
The researchers selected three geographically diverse study areas,
each comprised of one census tract in which at least one adult enter-
tainment business was in operation. They further selected three con-
trol (non-adult) tracts located directly adjacent to the study tract. An
attempt was made to match each of the three control areas with the
study areas on several dimensions, :including the number of build-
jngs built since 1950, the median family income, median population
age, percentage of acreage used residentially and percentage of popu-
lation that was non-white.
It is essential that the selected study and control areas be accu-
rately matched, but the matching of study and control census
tracts for this study was unacceptable. The median income for
study area 1 was 30% lower than that in the matching control, con-
trol area 1 had a substantially greater number of buildings built
since 1950 than the corresponding study area, and study areas 2
and 3 each had significantly lower median income levels than did
their matching control areas. Since income and crime levels a.re
generally inversely related one might expect to see higher crime
rates with lower income irrespective of the presence of adult busi-
nesses. These failures to sufficiently match the study and control
areas suggest that this study does not adhere to acceptable profes-
sional standards for scientific research.
In addition, there was an insufficient period of time, both prior
to and following the establishment of an adult entertainment busi-
ness for reliable measures of crime or economic deterioration to be
obtained. The study was limited to crime rates for a one-year pe
riod. Because of the extremely short period of time, one cannot be
sure that the study was not merely detecting an erratic pattern of
social activity.
Finally, although the study fmdings suggested that overall crime
rates were higher in each of the study areas than those for each
matching control area, a composite indei: of "violent crimes," which
included murder, robbery, assault and rape, was also constructed.

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NEGATIVE SECONDARY EFFECTS 381

Each study (adult) area. showed a lower rate of violent crime (includ-
ing rape) than the matched control (nonadult) area. In addition, the
:rate of child molestation was higher in the control (non-adult) areas
than in the matched study (adult) areas. The :results of the study of-
fered, at best, equivocal e,ridence of the relationship between crime
rates and the operation of adult entertainment businesses.

lndianapoli&, Indiana (1984) 94

This study appeared to be the report most widely cited and relied
upon by municipalities as evidence of negative secondary effects.
Regardless of the problems with this report as outlined in this sum-
mary, the overall study offered equivocal :findings regarding the
supposed relationship between adult businesses and negative sec-
ondary effects. More importantly, in a sub-area analysis most rele
vant to the question of the relationship between adult businesses
and secondary effects, lower rather than higher crime rates were
found in all study (adult business) areas when compared to control
(no adult business) areas. In addition, the overall study failed to
adhere to rudimentary professional standards of scientific evi-
dence, and an error rate could not be calculated due to a failure to
meet basic statistical assumptions.
The methodological problems with this study can be summarized
as follows: (1) The control sites were not sufficiently comparable
(properly matched) with the study sites. (2) No measurements were
ta.ken prior to the establishment of an adult entertainment busi-
ness to ensure that the study was not merely picking up an already
established crime pattern that is independent of the adult busi-
nesses in the area. (3) There was a potential confounding effect
caused by adult entertainment busmesses that supplied both sexu-
ally oriented entertainment and alcoholic beverages. (4) The re-
searchers did not adhere to minimum professional standards by
failing to conduct a survey study of real estate professionals in ac-
cordance with proper survey techniques. Beyond being purely sub-
jective, the most striking limitations of this survey study were that
it asked a. national sample of real estate appraisers who were not
from Indianapolis to consider only a hypothetical scenario concern-
ing ad.ult businesses in an unspecified community. Thus, the sur
1rey results are not applicable to the question of whether an adult

94 See CITY OF 1NDIANAPOLJS, supra note 63.

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382 6 COMM. L. & POL'Y 355 (2001)

business would have a negative (even subjective) effect upon prop-


erty values in the Indianapolis area.
The Indianapolis study contained reports of four separate analy-
ses. Each had significant methodological problems that undercut
its reliability.
'While the first set of analyses purported to show that higher
crime rates were associated vvith adult entertainment businesses,
the researchers failed to adhere to minimum professional stan-
dards by not properly matching study and control areas and by not
including a sufficient period of time prior to the establishment of
an adult entertainment business for collection and analysis of data.
In this portion of the report, the researchers compared crime rates
for six study areas containing at least one adult entertainment
business with crime rates for six control areas containing no adult
entertainment businesses. The study authors attempted but failed
properly to match control and study areas on a number of criteria,
including zoning mix, population size and age of housing stock. Sig-
nifi.cant differences existed in reference to the zoning mix within
the majority of study versus control sites. In addition, the control
sites were 37% more heavily populated than the study sites. Since
population density and zoning mix are often associated with higher
crime rates, any differences found between the study and control
areas could very well have been due to these factors rather than
the presence of adult businesses.
Another problem with the study was that it did not include a suffi-
cient period of time prior to the establishment of an adult entertain-
ment business for the collection and analysis of data. This lack of a
measurement some time before the adult business located in the area
made it impossible to determine whether fmdings of higher or lower
crime rates in either a:rea were associated with the operation of adult
entertainment businesses or whether the study was simply detecting
an already established pattern of criminal activity.
Finally, also problematic was the fact that at least one establish-
ment that served alcoholic beverages was included within each of the
study areas, while this was not the case for each of the control areas .
.A.s at least one study has found evidence that the presence of alco-
hol-serving establishments are associated with higher rates of crimi-
nal activity, 90 this must be viewed as a potentially serious fl.aw
(confound) to the study's validity. One would eJ..1)ect to see higher
crime rates in areas that contained establish1nents that served alco-

95 CITY OF ST. PAUL, supra note 66.

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NEGATIVE SECONDARY EFFECTS 383

holic beverages, regardless of the presence or absence of any sexually


oriented businesses.
Particularly interesting was the fact that the Indiana.polis report
included a sub-area analysis that found lower rather than higher
crime rates in all areas where adult businesses were located com-
pared to control (non-adult) areas. This analysis involved a compari-
son of crime statistics for a smaller sub-area of the larger areas
considered in the first analysis described above. The researchers ex-
amined crime rates in a 1000-feet radius around the adult businesses
in the study areas. They compared these crime rates to those within a
1000-feet radius around a random centroid located within the con-
trol areas used in the first analysis. This portion of the study would
then appear to be the most relevant of all to the question of whether
adult businesses create or cause secondary effects in the areas imme-
diately surrounding them. However, this sub-area analysis found
lower crime rates in all study areas compared to control areas.
The Indianapolis report authors also claimed to have found a sub-
stantially smaller increase in property values for the study areas
than for the control areas. However, the researchers failed to adhere
to minimum professional standards by not properly matchlng study
and control areas for this analysis. This portion of the study was
therefore unreliable from a scientilic standpoint.
The analysis compared the average home mortgage value and av
erage number of homes sold for the control and study areas dis-
cussed in the first study, as well as those for the center township
area. Since the data came from the same study and control areas
discussed in the first analysis, these data are fraught \Vith the same
methodological problems associated with that data set (that is, the
study and control areas were not properly matched). The average
mortgage values in the study areas were initially 49% higher than
those in either the control areas or the central tovvnship area. As
such, the finding that the average mortgage value for the control
areas and central township area increased by 77% and 56%, respec-
tively, while the study areas saw only an average increase of 26%~
can be eJ::plained as the result of what is known as a ceiling effect.
The study area values may have initially been far more inflated
than the two comparison areas. Thus, it would come as no surprise
that the study areas saw a smaller increase in property value than
the comparison areas. The vast differences in initial mortgage val-
ues associated v17ith the failure to properly match control and study
areas rendered the two areas far too dissimilar to consider as suit-
able comparison groups. Finally, it should also be noted that de-
spite the greater increase in mortgage values for the control and

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384 6 COMM. L. & POVY 355 (2001)

center township areas in comparison to the study (adult) areas, the


study area still maintained a higher average mortgage value when
the final measures were taken.
The fourth analysis described in the Indianapolis report included
the results of a national survey of members of the P..merican Insti-
tute of Real Estate Appraisers. The data collection for this analysis
was flawed in three ways. First, survey research on perceived likely
deterioration effects is completely subjective and does not answer
the question as to whether there are secondary effects associated
with adult establishments in terms of actual property values, such
as average home prices or other economic indicators. Second, even
in this subjective analysis, the researchers failed to adhere to mini-
mum professional standards by failing to conduct the study in ac-
cordance with proper survey techniques. Although a random
sample of real estate professionals was obtained, the response rate
was unacceptably low (only one third of the respondents returned
the questionnaire). Further, no error rate was calculated for the
percentages reported in the study. Without the calculation of an er-
ror rate, the researchers cannot establish a ''confidence interval"
around the percentages calculated in the study. This is especially
troublesome given the fact many of the findings hovered around
the 50% mark. Without some indication of the confi.dence one can
place in these estimates, it is unclear if the majority or a minority
of respondents projected a negative impact if adult businesses were
to locate in a community.
Third, and even more problematic, the sampled appraisers were
asked only to consider a brief hypothetical situation concerning a
middle class family that lived in an area in which an adult bookstore
would soon be opening in a nearby building. The respondents were
asked five questions concerning the potential effects on the value of
the family's home. A fatal flaw in this study is that it asks a nation-
ally selected group of appraisers-none of whom were from India-
napolis-to consider only a hypothetical scenario. Thus, it has little
to say about how an. Indianapolis community appraiser might actu-
ally view the value of a home in Indianapolis Of such a question was
even truly relevant to the seconda:ry effects doct:rine).

Summarj' of the Six 0th.er Most Frequen:tly


Referenced B.eporis

Table 3 prmiides a brief description of the methodological features


of each ofthe remaining studies in the "top ten," and illustrates the de-

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TABLE 3. HOW WELL THE TOP TEN R.EFERENCED STUDIES MEET THE NECESSARY CRITERIA FOR GOOD SOCIAL
SCIENTIF1C RESEARCH

Criteria
Valid Measure of Change in Police Correct Survey Evidence of
Study Matched. Control Crime Statistics Sufficient Time Lag Surveillance Methods Secondary Effects
Indianapolis (1984) No(-) Yes(+) No(-) No(+) Yes(+) Equivocal
Phoenix (I!J79) No(-) Yes(+) No(-) No(+) NA Equivocal
Los Angeles (1977) Yes(+) Yes(+) Yes (-1-) Yes(-) No(-) None
St. Paul (1978) Yes(+) NA Yes (-1-) NA NA None
Austin (1986) No(-) Yes(+) No(-) No(+) Yes(+) Equivocal
St. Paul (1987), (1988) No(-) Yes(+) No(-) NA NA None
Amarillo (1977) No(-) Yes(+) No(-) No(+) NA Yes
Detroit (1972)* NA NA NA NA NA None
Beaumont; (1982)"' NA NA NA NA NA None
Kent (1982) NA NA NA NA No(-) Equivoeal
*Not an empirical study.

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386 6 COMM. L. & POL'Y 355 (2001)

gree to which the studies are scientifically valid. The remaining six
most frequently referenced studies in descending order were reports
produced by Austin, Texas (1986),96 St. Paul, Minnesota (1987,
1988),97 Amarillo, Texas (1977),98 Detroit, Michigan (1972),99 Beau-
mont, Texas (1982) 100 and Kent, Vvashington (1982).101 Two of these,
the reports by Beaumont and Detroit, are not empirical studies. The
Beaumont "study," for example, is merely a report prepared by the
planning department of that municipality, suggesting a need for regu-
lation of adult businesses. The remaining four reports did not adhere
to minimum professional standards of valid scientific research by fail-
ing to meet one or more ofthe four necessa..'j7 criteria discussed above.
The studies produced by Austin, St. Paul and Amarillo all failed to
compare neighborhood characteristics (crime rates or property val-
ues) for areas containing adult entertainment businesses with con-
trol areas containing no such businesses. In addition, these three
studies failed to in.dude measures of neighborhood characteristics
over a sufficient period of time, both prior to and following the estab-
lishment of adult entertainment businesses. Further, the Kent
study, which contained a report of an attempt to query neighbors of
adult business establishments, failed to adhere to even the most min-
imal professional standards for proper survey research.

CONCLUSIONS

This article has abstracted and analyzed the methodology and ma-
jor empirical fmclings of studies purporting to detect secondary ef-
fects of adult businesses. It has demonstrated, with few exceptions,
that the scientific: validity of the most frequently used studies is
questionable and the methods are seriously and often fatally flawed.
These studies, relied on by communities throughout the country, do
not adhere to professional standards of scientific inquiry and nearly
all fail to meet the basic assumptions necessary to calculate an error
rate. Those studies that are scientifically credible demonstrate either

96CrrY OF AUSTD.~, TEx.A.s, REPORT ON ADULT ORIENTED BUSINESSES IN AUSTIN


(1986).
97ClTY OF ST. P.AUL, lv.Il'.NNESOT.A, ADULT ENTERTAINMENT-A 40-.ACRE STUDY
(1987); Cm OF ST. PAUL, MINNESOTA, ADULT ENTEitT.AJNMENT-8UPPLlllMENT TO
THE 1987 ZONING STUDY (1988).
9BCITY OF .AMA.rul..LO, Tl!:XAS, REPORT ON ZONING AND 0THEn. METHODS OF
REGULATING ADULT ENTERTAINMENT IN AMARILLO (1977).
990ITY OF DETROIT, MrcmG.AN, DETROIT'S APPROACH TO REGULATING "ADULT"
USES (1972).
100cm OF BEAUMONT, TEXAS, REGU'.uA.TION OF ADULT USES (1982)
lOlCITYOFK.ENT, WASrIDl'GTON. CITY OF KENT ADtn,TUSEZONING STUDY (1982).

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NEGATIVE SECONDARY EFFECTS 387

no negative secondary effects associated with adult businesses or a


reversal of the presumed negative effects.
Specifically, this article applied four criteria for methodological
validity and found that the majority of studies failed to meet at least
one, and often all, of these criteria.. First, a number of studies at-
tempting to compare areas containing adult businesses to areas con-
taining no such businesses failed to include comparison (control)
areas that were sufficiently matched regarding important character-
istics, such as age of housing stock or racial make-up. This lack of
comparability between study and control areas prevents researchers
from determining whether neighborhood deterioration is related to
the operation of adult businesses in an area or that some other con-
founding variable is responsible for the outcome. Second, a number
of the studies using neighborhood crime measures have collected
these statistics improperly . .Although many studies gathered legiti-
mate and consistent measures of crime statistics, such as police ar-
rest reports over a sufficient period of time, a number of others used
less scientifically acceptable measures, such as cross sectional survey
results of residents' opinions oflevels of crime. Third, the majority of
studies failed to include a sufficient period of elapsed time, both prior
to and following the establishment of an adult entertainment busi-
ness, when measuring the relationshipbetwee11 the presence of adult
businesses and a number of negative outcomes, such as higher crime
rates and lower property values. Without a sufficient study period, it
is difficult to determine whether a relationship exists between adult
entertainment businesses and negative secondary effects, or
whether the data are simply a reflection of an erratic pattern oflocal
aciivity. Finally, most of the studies that included survey results uti-
lized non-random and therefore biased samples of residents and/or
business owners, rendering them scientifically invalid. Even if meth-
odologically valid, such studies offer only subjective opinions con-
cerning the impact of adult businesses and provide little, if any,
evidence of actual negative secondary effects.
The studies reviewed here have been (and continue to be) shared
across communities. AB such, the methodological flaws found in
these studies prevent them from being used to establish a sufficient
government interest in the regulation of adult businesses within a
particular community. However, these unsound studies have been
repeatedly misused as evidence across a large number of other mu-
nicipalities. For e:1::ample, the Indianapolis study is cited by no fewer
than 22 communities as evidence of a relationship between adult
businesses and negative secondary effects. This study contained se,r-
eral substantial methodological flaws and found evidence both sup

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388 6 COMM. L. & POL'Y 355 (2001)

porting as well as rejecting negative secondary effects. Thus, the


potential exists that as many as 22 zoning ordinances have been
founded on a false premise about the substantial government inter-
est in regulating the location of these businesses.
Although not specifically mandating such, the United States Su-
preme Court in Pap's may be perceived by some municipalities as
permitting the extension of use of these flawed studies to the regula-
tion of e.,.,"Pressive conduct within an adult business as a basis for up-
holding an ordinance to regulate nudity on the ground that such a
restriction would serve to eliminate negative secondary effects of
such expression. Such regulation would be based on the same false
premise as the zoning regulations addressed in Young and
Renton-that there is valid evidence of a substantial government in-
terest at stake, and that these types of laws further those interests (if
they indeed exist) ,102

102Iu his dissent in Pap's, joined by Justice Ginsburg, Justice Stevens argued that
no rationale existed for an extension of the secondary effects doctrine as ajustifica-
tion for censoring nude dancing. City of Erie v. Pap's A.M., 120 S. Ct. 1882, 1406
(2000) (Stevens, J., dissenting). This doctrine was originally developed in O'Brien
and extended to the regulation of adult businesses as a justification for zoning in
Young. Stevens wrote that, although two fractured majorities of the Supreme Court
have found such an application of the secondary effects rationale acceptable, the as-
sumption that these secondary effects studies, even if they were not methodologi-
cally flawed, could be applied to justify regulation of forms of expression such as
nude dancing may be unfounded.. Id. at 1408-09. He suggested that the secondary
effects doctrine, as it had previously been applied to adult businesses, was tailored
towards zoning, that there existed no clear rationale for extending this doctrine as a
justification for the regulation of expressive content, and that doing so represented a
dangerous ertension of censorship. Id. Stevens wrote:
Until now the ''secx>nda:ry effects" of commercial enterprises featuring indecent enter-
tainment have .iustifi.ed only the regulation of tbe.ir location. For the first time, the
Court has now held that such effects may justify the total suppression of protected
speech. Indeed, the plurality opID.J.on concludes that admittedly trivial advancements
of a State's interests may provide the basis for censorship. The Court's commendable
attempt to replace the fractured decision in Barnes ... with a single coherent rationale
is strikingly unsuccesaful; it is supported neither by precedent nor by persuasive rea-
soning.
Id. at 1406. Justice Stevens also stated:
To believe that the mandatory addition of pasties and a G-string will have an.y hind of
noticeable impact on secondary effects requires nothing short of n titanic surrender to
the implausible. It would be more accurate to acknowledge, as JUSTICE SCALIA does,
that there is no reason to believe that such a requirement "will at all reduce the ten-
dency of establishments ... to attract crime and prostitution, and hence to foster sexu-
ally transmitted disease."
Id. at 1409 (citing id. at 1402 (Scalia, J., concurring)). Justice Stevens, therefore,
viewed Erie's anti-nudity ordinance as an unwarranted and ineffective restriction. on
ro:preasion. Justice Souter noted that there had been an adult business zoning ordi-
nance on the books in Erie for 23 years before the anti-nudity ordinance in question

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Even if the studies undertaken to justify zoning were not scientifi-


cally flawed, there are a number of other reasons why it may be inap-
propriate to extend the secondary effects doctrine to the regulation
of nudity. First, and perhaps most obvious, there have been no stud-
ies that have been specifically designed to measure the impact of nu-
dity per se on adverse secondary effects. Of most use would be studies
wherein rates of adverse secondary effects for areas surrounding
nude dancing establishments are compared to those surrounding es-
tablishments where pasties and a g-string are required. In the ab-
sence of such a direct test, it cannot and should not be assumed that
the studies reviewed here, even if methodologically sound, would
generalize to the regulation of nudity.
In fact, from a social psychological standpoint there are several
factors that may prevent the generalization of the evidence collected
to justify the application of zoning regulations to the regulation of
nude dancing. For example, there may be substantial differences in
the characteristics of the patrons who frequented the adult estab-
lishments studied to justify zoning compared to those who now visit
establishments offering live nude dancing. Further, the earlier sec-
ondary effects studies were conducted to address the problem of
adult businesses that purveyed e1.'J)licit depiction of sexual inter-
course and other sexual acts, whereas nude dancing does not involve
such explicit performances. In addition, live entertainment may pro-
duce substantially different effects than filmed or videotaped acts.
Finally, the interpersonal element of live nude dance establishments
must be considered. Viewing a live dancer and later perhaps interact-
ing with that dancer may produce significantly different outcomes
than viewing erotic movies or the other fare usually purveyed in
businesses considered in earlier secondary effects studies. Until
these questions are addressed through scientifically valid empirical
research, the applicability of the secondary effects doctrine to yet an-
other area of speech regulation is highly questionable.ios

had been used to censor nude dancing. However, the cicy had not enforced this ordi-
nance. Justice Souter indicated that the anti-nudity ordinance did not represent the
lea.st restrictive means for curtailing secondary effects because the city had not en-
forced its less restrictive zoning ordinance and had instead chosen to apply a total
ban on nude dancing. .AB such, the anti-nudity ordinance failed the fourth prong of
the O'Bri.en test. Id. at 1405 (Souter, J., dissenting).
1oasee .Alameda Books, Inc. v. Los Angeles, 222 F.Sd 719 (9th Cir. 2000). The
Ninth Circuit has addressed the applicability of studies conducted on adverse sec-
ondary effects for a particular purpose to another, arguably unrelated concern. Id.
at 724-28. The appeals court affirmed a lower court's decision to strike down a. Los
Angeles ordinance prohibiting; the opern.tion of adult businesses that both sell adult
produets and contain facilities for the viewing of adult movies or videos. Id. at 728.

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The Application of Soeial Science Evidence


to the P.egulation of Nude Dancing
Because the anti-nudity ordinance under scrutiny in Pap's was so
similar to that considered in Barnes, it seems likely that with its
Pap's decision, the Supreme Court had hoped to replace the frac-
tured decision in Barnes with a clear majority ruling. Such a ruling
may have offered the lower courts, lawmakers, adult business own-
ers and First Amendment scholars a coherent precedent towards
which to look when considering the constitutionality of anti-nudity
regulations based on the secondary effects rationale. Yet, while the
Court's decision m. Pap's appears to be another fractured decision,
there may be more coherence to the ruling than is at first apparent.
Five justices and thus a majority embraced the secondary effects
doctrine in Pap's. Justice Souter, who dissented in part, not only
agreed with the plurality's application of the O'Brien test to nude
dancing as a form of symbolic speech, but, in theory, he also supported
the secondary effects doctrine. Justice Souter merely disavowed his
assertion in Barnes that secondary effects may be presumed. In Pap's,
he questioned whether such a relationship has been empirically dem-
onstrated in previous studies. It appears that Justice Souter is willing
to accept application of the secondary effects doctrine to regulation of
nudity in a particular community, if empirical evidence of a relation-
ship between nude dancing and negative secondary effects can be ob-
tained and, since his concurrence is necessary to obtain a majority that
the O'Brien secondary efforts doctrine applies, this opinion may in fact
be the Constitutional holding of Pap's.
N everless, in Pap's, the plurality provides room for challenges,
based on the collection of empirical evidence, to the assertions made
by municipalities regarding a relatio11ship between adverse second-
ary effects and nude dancing. The plurality noted that the adult busi-
ness in question in Pap's could have challenged the City of Erie's
assertion that nudity led to ill effects but that it did not do so. This
leaves room for the introduction of secondary effects evidence col-

The court rejected Los Angeles's attempt to use a study conducted in 1977 (reviewed
above), which examined the relationship of adverse secondary effects and the con-
centration of adult businesses as evidence of a compelling government interest to
regulate single business with combined uses. The court reasoned that the 1977
study offered no information on the effects of the combination of product-video
booth within a single business. Id. a.t 724.. "For the purposez, of the secondary effects
identified in the Los Angeles study, a solitary bookstore/arcade combination is
hardly of the 'same character' as a grouping of multiple adult business establish-
ments in a given geographical area." Id. at 726 n. 7. As such, the court refused to al-
low a leap in logic similar to that of the plurality in Pap 's.

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NEGATIVE SECONDARY EFFECTS 391

lected by adult businesses both in city council hearings and as a basis


for court litigation.
It is likely, based on the plural's decision in Pap's, (that is, that
the secondary effects doctrine pertains to nudity regulations), cou-
pled with Justice Souter' s admonition that secondary effects must be
demonstrated convincingly (that is, empirically), that future court
:rulings concerning the constitutionality of regulations of nudity
within adult businesses will continue to involve an application of
some form of the O'Brien test. In considering the compelling govern-
ment interest prong of the O'Brien test, lower courts intending to re-
main consistent with the Supreme Court's holding in Pap's may be
forced to consider the methodological legitimacy of any evidence of a
relationship between negative secondary effects and adult busi-
nesses collected by municipalities and by business owners who at-
tempt to challenge governmental regulations predicated upon the
allegation of such a connection.
In evaluating the admissibility of this evidence, the courts may be
best served byturningto standards laid outinDaubertforthe admissi-
bility of scientific evidence. The application of such standards, bol-
stered by Justice Souter's opinion in Pap's, may force the courts to
reject the studies previously relied upon as evidence of negative sec-
ondary effects, and require new, more methodologically sound, stud-
ies to demonstrate a compelling government interest in regulating
nudity.
The courts should be mindful of the criteria designated above for
collecting empirical evidence in a methodologically sound manner.
Specifically, only evidence obtained using relatively closely matched
control and experimental comparison areas should be acceptable. Fur-
ther, where possible, a time-series analysis should be undertaken. All
indicators of neighborhood quality (for example, crime rate and prop-
erty values) must also be consistently measured across the study con-
ditions. Courts may then accept any evidence (or lack. thereof) that met
all of the above criteria as defmitive. Only such evidence of a relation-
ship between adult entertainment businesses and negative secondary
effects should be acceptable, both social scientifically as well as legally.
In this article, it has been demonstrated that there is sufficient
room for a serious challenge to the assumption made by communities
across the United States that past studies of secondary effects show
an empirical relationship between adult businesses and negative ef-
fects. Further, there is presently no legitimate basis for extending
the secondary effects doctrine to the regulation of expression 'Within
adult businesses based on these studies. City councils, municipalities
and the courts are best served by the collection of new evidence based
on sound scientific standards.

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EXHIBIT 4

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An Online Publication of the Southern States Communication Association's Freedom of Speech Divsion

VOLUME 7, Issue 1
Senatorial and Judicial First Amendment Rhetoric of Hugo LaFayette Black.
Lindsley Armstrong Smith, University of Arkansas

Testing Supreme Court assumptions in California v. la Rue:


Is there justification for prohibiting sexually explicit messages in establishments that sell liquor?
Daniel Linz, University of California at Santa Barbara

Mike Z. Yao, City University of Hong Kong

Sahara Byrne, University of California at Santa Barbara

Freedom of expression, hate speech, and models of personhood in Hungarian political discourse.
David Boromisza-Habashi, University of Massachusetts - Amherst

From Hazelwood to Hosty: Student publications as public forums.


Christopher J. Hunker, Boston College

A First Amendment analysis of hate speech aimed at illegal immigrants:


When intolerant speech is no longer protected.
Joshua Azriel, Kennesaw State University

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Testing Supreme Court Assumptions in California v. la Rue: Is There Justification for


Prohibiting Sexually Explicit Messages in Establishments that Sell Liquor?
Daniel Linz, Mike Z. Yao, & Sahara Byrne1
Abstract
The United States Supreme Court has upheld the idea that a state may prohibit the
communication of sexually explicit messages and adult entertainment in establishments licensed
to sell liquor. State liquor control boards across the country rely on this decision and its progeny
in order to regulate alcohol serving businesses that feature adult entertainment. These boards
have accepted the here-to-fore untested premise that combining liquor service with adult
entertainment leads to greater adverse secondary effects than merely serving liquor alone. In
order to test this assumption a study of prostitution, sexual assault and other sexual offenses in
Toledo, Dayton, Columbus and Cleveland, Ohio was undertaken utilizing crime event data
provided by the police. The results revealed that adult businesses were not the primary source of
sex crime events and in some instances sex crime was inversely correlated with the presence of
these businesses in a community. Most often these businesses showed zero sex crime events.
Instead, alcohol serving, non-adult establishments are a significant source of such events. The
consistency of the results of the present study with past research and the implications of this
study and past research for assumptions made about state regulations of sex-related
communication are discussed.

SUPREME COURT DECISION MAKING


AND NEGATIVE SECONDARY EFFECTS OF ADULT BUSINESSES
Introduction
Across the United States there is escalating legislative activity limiting sex-related
communication in adult entertainment establishments. This is activity is occurring just as, or
because of, the greater number of people, men and women, who are frequenting adult
entertainment establishments. According to Adult Video News Exotic Dance Clubs accounted
for 15 percent of adult entertainment retail sales or approximately two billion dollars of revenue
in the United States in 2006.1 As adult entertainment is becoming more popular, groups of
citizens, and local and state legislatures are imposing more limitations on this form of
communication.
The justification for these limitations is often the belief that exotic dance clubs are
_______________
1
Daniel Linz, Ph.D., Professor of Communication and Law & Society at the University of California at Santa
Barbara, Department of Communication and Law & Society Program, linz@comm.ucsb.edu; Mike Z. Yao, Ph.D.,
Assistant Professor of Communication, Centre for Communication Research, City University of Hong Kong,
mike.yao@cityu.edu.hk; & Sahara Byrne, M.A., Doctoral Candidate, University of California at Santa Barbara,
Department of Communication, saharabyrne@umail.ucsb.edu

23

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associated with crime. For example, in March of 2007, in Columbus, Ohio a ballot issue was
debated in the state legislature that would restrict behavior in exotic dance clubs across the state.
The bill would require performers who are nude or seminude to stay at least six feet from a
patron and prohibit performers from touching a patron, their clothing or each other. It would also
prohibit sexually oriented businesses from being open between midnight and 6 a.m., and exotic
dance clubs with liquor licenses could not feature adult entertainment during those hours. The
ballot issue is backed by the Cincinnati-based Citizens for Community Values and could wind up
on the November 2007 ballot if the Legislature gives its approval. David Miller, vice president of
Citizens for Community Values, told the Ohio Senate State and Local Government Committee
that the restrictions would reduce crimes such as prostitution and sexual assault 2
Supreme Court Decisions and the Secondary Effects Doctrine
Since 1976, the United States Supreme Court has decided a series of cases focusing on
whether the Free Speech clause of the First Amendment allows cities and states to enact
legislation controlling the location of sexually oriented businesses.3 Zoning regulations, laws
or ordinances that prevent a sex-related business from operating within certain defined areas
and/or within a certain number of feet of so-called sensitive locations (e.g., residential
neighborhoods, schools, houses of worship and/or other adult establishments) have been
predicated on the notion that municipalities have a substantial interest in combating so-called
negative secondary effects" on the neighborhoods surrounding exotic dance businesses. These
secondary effects are generally said to include alleged increases in crime, decreases in property
values, and other indicators of neighborhood deterioration in the area surrounding the adult
establishment.
The rationale for the secondary effects doctrine was most completely laid out in Renton
v. Playtime Theatres, Inc., in 1986. In Renton, the Supreme Court considered the validity of a
Renton municipal ordinance that prohibited any X-rated theater from locating within 1,000 feet
of any residential zone, family dwelling, church, park or school. The Court stated that the
ordinance would be upheld so long as the city of Renton showed that its ordinance was designed
to serve a substantial government interest such as a reducing crime rates or maintaining property
values.
The secondary effects doctrine laid out in Renton may be thought of as a method of First
Amendment analysis engaged in by the courts to reduce the level of scrutiny with which they

24

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examine a speech restriction.4 The courts have said that where the purpose behind a government
regulation is to reduce the negative secondary effects associated with speech the government to
engage in a content based speech regulation by invoking the relaxed intermediate scrutiny
standard utilized for content-neutral regulations rather than the strict scrutiny standard to which
content-based laws are subject.5
Using the secondary effects doctrine, the Supreme Court has upheld, against First
Amendment free speech challenges, zoning ordinances that limit the locations of adult
entertainment businesses in local communities across the country. 6 In addition, public nudity laws
have been put forth that require exotic dancers at strip clubs to wear minimal amounts of clothing.7
Regulations have also been placed on the hours that adult businesses may operate.8 Restrictions
have also been placed on sexually oriented communication by establishing a buffer or no-touch
zone between a dancer and patrons.9
The present study addresses a problem associated with the secondary effects doctrine
rarely studied by legal scholars. We ask what types of harms occur and what types of evidence is
available to justify a government's decision to limit sex related communication under the
secondary effects doctrine?
Combining Alcohol Service and Adult Entertainment
More than thirty years ago, the United States Supreme Court facilitated the adoption of
regulations specifically controlling exotic dance clubs that serve alcohol. The Supreme Court
maintained that states could regulate sexually explicit messages and adult entertainment in liquor
serving establishments.10 The Court based this holding on the Twenty-first Amendment to the
U.S. Constitution.11 Although this Amendment is most well known for repealing prohibition, it
also gave states the power to regulate alcoholic beverages.
This opinion involved the California Department of Alcoholic Beverage Control, which
had issued regulations prohibiting explicitly sexual live entertainment and films in bars and other
establishments licensed to dispense liquor by the drink. A three-judge District Court held the
regulations invalid under the First and Fourteenth Amendments, concluding that under standards
laid down by this Court some of the proscribed entertainment could not be classified as obscene
or lacking a communicative element. Among the regulations at issue were those prohibiting the
performance of simulated sexual intercourse, actual or simulated touching, caressing or
fondling of the breast or the actual or simulated displaying of the public hair, anus, vulva or

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genitals.12 The Supreme Court held that in the context, not of censoring dramatic performances
in a theater, but of licensing bars and nightclubs to sell liquor by the drink, the States have broad
latitude under the Twenty-first Amendment to control the manner and circumstances under
which liquor may be dispensed, and here the conclusion that sale of liquor by the drink and lewd
or naked entertainment should not take place simultaneously in licensed establishments was not
irrational nor was the prophylactic solution unreasonable.
This decision set the stage for continuing litigation because the Court observed that: "at
least some of the performances to which these regulations address themselves are within the limits
of the constitutional protection of freedom of expression" and added that its holding "is not to say
that all such conduct and performance are without the protection of the First and Fourteenth
Amendments."13
Although 44 Liquormart, Inc. v. Rhode Island, disavowed La Rues reasoning insofar as it
relied on the Twenty-first amendment, the Supreme Court stressed in that case that LaRues
holding remained intact. 14 "[T]he Court's analysis in LaRue would have led to precisely the
same result if it had placed no reliance on the Twenty-first Amendment. ... Without questioning
the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty-first
Amendment."15
Since these rulings courts, including the Supreme Court, have consistently held that there
are increased risks of secondary effects when combining nudity (or partial nudity) and alcohol. 16
The Rationale as Relied Upon by the Liquor Control Commission of the State of Ohio
Liquor control boards have relied upon the idea that states may legally regulate sex-
related communication in alcohol-serving establishments in order to combat adverse secondary
effects originated in LaRue and its progeny across the country. In order to justify regulation of
adult entertainment in alcohol serving businesses these boards have often accepted the untested
premise that combining liquor service with adult entertainment leads to greater adverse
secondary effects than merely serving liquor alone.
The rationale relied upon by the Liquor Control Commission of the State of Ohio is
exactly this premise. At a public hearing involving the Proposed Rule No. 4301:1 -1- 52 (a
measure to limit the display of simulated sex acts in liquor serving establishments throughout
Ohio) on September 11, 2003 the testimony of Mr. Bruce Taylor prosecutor for the U.S.

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Department of Justice was presented. Although he offered no specific evidence for his assertions
Mr. Taylor opined:
There have been studies that were done in cities across the
country for the past 30-some years, most of which have involved
adult bookstores, but other kinds of sexually-oriented businesses
like strip joints and adult theatres and porno book stores that sell
sexually-oriented materials or permit sexually-oriented
entertainment like strip acts, like nude dancing. (Pg. 15).

So this idea that the harmful secondary effects that have existed
and have been noticed by reports or by studies around the country
is something that is (sic) sort of become a body of common
knowledge. (pg 17-18)

But the studiesdid conclude that the harmful secondary effects


are, if anything worse when you combine -- you have some when
you have just the nudity and sex shows and stripping. But, there
are more effects and more greater degree of intensity (sic) and
harm on the community and on the people in it when you mix the
alcohol and the sex with alcohol and the nudity. (pg. 66)

This purpose of the present study is to ask: What types of harms are associated with
exotic dance clubs in Ohio that serve alcohol? Is there evidence of effects such as increases in
crimes, especially sex crimes, surrounding or within these businesses as the Citizens for
Community Values vice president told the Ohio Senate State? Are the harms in the form of
crimes such as prostitution and sexual assault sufficient to justify restrictions on hours of exotic
dance, dance patron distance regulations and other legal regulations limiting sex-related
communication? Below, an empirical study is conducted to determine if a relationship exists
between adult businesses that serve alcohol and harm done to the community in terms of sex
crimes in four Ohio cities--Toledo, Dayton, Columbus and Cleveland.
METHODS AND DATA
The methodological approach taken here involves three procedures. First, the Computer
Aided Dispatch (CAD) or National Incident Based Reporting System (NIMBRS) data involving
sex crimes in the cities of Toledo, Dayton, Columbus and Cleveland Ohio were obtained and
aggregated within census block groups defined by the 2000 United States Census Bureau.
Second, we measured the presence or absence of community features derived from Social
Disorganization theory (discussed below), including the presence of alcohol serving non-adult
businesses that may be related to criminal activity. Third, these two sources of information are

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combined for analyses in order to answer the following question: Once variables known to be
related to crime events suggested by Social Disorganization theory have been statistically
controlled, does the presence of adult entertainment in an alcohol serving establishment increase
sex-related crimes above and beyond those crimes at alcohol serving establishments that do not
present such entertainment?
Social Disorganization Theory and Crime
Social disorganization theory, originally conceived by Shaw and McKay, has been used
by criminologists to understand the causes of crime rates within urban neighborhoods. 17 Social
disorganization theory specifies that impoverished local communities characterized by
residential instability and made-up of ethnically diverse residents are more likely to lack social
organization when compared to more affluent, homogenous neighborhoods with stable
populations.18 Empirical research has demonstrated consistent support for Social Disorganization
theory. Scholars have since reformulated and refined Shaw and McKays classic model. 19 The
principles of social disorganization have been applied to the link between local institutions (e.g.,
bars) and crime.20 For example, researchers have reported that family disruption (measured as
divorced families), low socio-economic status, residential stability, and heterogeneity accounted
for much of the effect on rates of burglary.21 In addition, recent studies show that burglary is
influenced by other community characteristics, such as single parent households.22
Alcohol Outlet Businesses and Crime
The principles of social disorganization theory also suggest that local businesses are
associated with crime.23 Peterson et al. argue that socially disorganized communities are less
likely to attract and sustain conventional institutions such as banks, libraries, and recreational
centers that help control crime. 24 However, businesses such as bars are likely to be more
prevalent in disorganized neighborhoods and these businesses undermine crime control efforts.25
This alcohol outlet-crime connection is consistent with Bursik and Grasmicks assertion that
weak local institutions influence neighborhood life. 26 These weak institutions, operating within
the broader urban context induce crime and the combination of weak institutions and social
disorganization attributes are likely to foster even greater amounts of crime.27 Therefore, the
presence of bars in a neighborhood has been characterized as an indicator of social
disorganization.28 Alcohol establishments have also been conceptualized as crime generators.29
Watts and Rabow found a higher concentration of alcohol outlets in 213 socially disorganized

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California cities. 30 Other studies have posited a stronger effect for bars on crime than most
other social disorganization predictors.31 Overall, researchers have marshaled impressive
evidence indicating that alcohol outlets influence crimes of rape, assault, homicide, robberies,
auto-theft, public intoxication, and drunk driving.32 Some studies also report that alcohol
availability has such a profound effect on crime, namely homicide, that it intensifies the effect of
poverty.33
Units of Analysis
These studies have used a variety of different census units of analysis (e.g., tracts, block
groups, and blocks) that vary by geographic size. For example, studies have that indicated a
positive correlation exists between blocks occupied with a higher number of bars and higher
rates of crime.34 The total outlet rate of alcohol establishments in a community also appears to
have a significant effect on non-lethal violence at the census tract level.35 Additionally, the
number of bars has been found to predict offender rates at the census tract level.36 However,
using 1990 census, crime, and alcohol outlet data at the block group level, Alaniz et al. examined
the connection between immigrants and violence across three California communities.37 The
authors reported that violence was a function of alcohol availability and family breakdown (i.e.,
percent divorced) at the Census block group level.
Block Group Level U.S. Census Demographic Information for Four Ohio Cities
The 2000 United States Census measures general demographic characteristics of each
block group. These variables include, among others, measures of population, sex and age, race,
relationships in household, household type measured at the block level. Using a Geographic
Information System (GIS) program, Maptitude 4.5, we were able to link demographic
characteristics of each census block group as measured by the 2000 United States Census to their
geographical locations. The crime incident data were then plotted in the same map according to
police records. Finally, a data file was constructed which included the demographic and crime
incident frequencies for each block group.
As we noted above several variables investigated by others have been found to be
important as predictors of crime activity. These include measures of population density, racial
composition, and neighborhood characteristics. These social variables have been examined on
the basis of the theory that a local areas population age structure (especially the presence of
young adults), and its race/ethnic composition can affect both the size of the pool of motivated

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crime offenders and the presence of suitable targets for predatory crimes. Variables that have
been investigated and have been found to be most important as predictors of crime activity
include measures of racial composition (number of African Americans and racial heterogeneity),
family structure (as measured by number of single-parent households, female headed
households), economic composition (as measured family income), and the presence of motivated
offenders, primarily males between the ages of 18 and 25 and socioeconomic status as measured
by level of education.38
In addition, it is necessary to control for neighborhood business and housing
characteristics that may contribute to social disorganization such as the presence of vacant
houses and lots and rental housing units and measures of neighborhood integration such as
number of owner occupied housing units. Specific land uses are not only important in
themselves but they also operate in interaction with variables that are indicative of social
disorganization. The presence of alcohol serving establishments or bars identifies areas that
might be particularly attractive for potential offenders.39
The list of population, general demographic characteristics, social disorganization
variables and alcohol serving establishments measured at the census block group level included
in the analyses appears immediately below.

Variable Group 1
POPULATION
AREA

Variable Group 2
MEDIAN_AGE OF POPULATION
NUMBER OF NONWHITES
FEMALE HEAD OF HOUSEHOLD, NO HUSBAND
MARRIED HOUSEHOLD FAMILIES
MEDIAN AGE

Variable Group 3
HOUSEHOLD MEDIAN INCOME
OWNER OCCUPIED HOUSING UNIT VALUE-MEDIAN
FAMILIES BELOW POVERTY LEVEL
ADULTS (25+) WITH LESS THAN 9TH GRADE EDUCATION
PERCENT OF ADULTS (25+) WITH BACHELORS DEGREE OR HIGHER

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Variable Group 4
HOUSE HOLD UNITS VACANT
OCCUPIED HOUSEHOLDS-OWNER OCCUPIED

Variable Group 5
NUMBER OF ALCOHOL SERVING ESTABLISMENTS

Variable Group 6
PRESENCE OF ADULT CABARETS
______________________________________________________________________

Our analysis strategy entails entering these Census variables into a statistical analysis to
control for the effects of these characteristics on crime incidents. After we control for
demographic features, we then examine the relative contribution of the presence of an alcohol-
selling establishment in the neighborhood. Finally, after we have controlled for this variable, we
then examine the impact of having an adult cabaret in the block group area on crime incidents.
These analyses are undertaken on a city-by-city basis.
Once the demographic and social disorganization variables are statistically controlled, the
effect of the variables measuring the presence or absence of adult cabarets (variable group 6) in
the block group is examined.
The analysis reported below was designed to answer the question: Once we have
controlled for characteristics of the immediate neighborhood (census block group) known to be
related to crime and community disorder, including alcohol serving establishments, what is the
effect of the presence of an adult cabaret in a census block group on crime events? This
comprehensive form of analysis is necessary to insure that once other sources of variability in
crime incidents, known from past research, are statistically controlled the effect of the adult
business as a source of crime and disorder in the area may manifest itself.
The Toledo Study
Method
Locating the Adult Cabarets and Alcohol Serving Establishments
A comprehensive list of adult cabaret businesses was obtained for the City of Toledo.
Three alcohol serving adult cabarets establishments were identified and examined in the present
study. We also obtained a comprehensive list of alcohol serving licensees in Toledo who were
issued licenses to sell alcoholic beverages by the Ohio Department of Commerce, Division of

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Liquor Control. (The list of cabaret and bar establishments may be obtained from the authors).
The addresses of these businesses were located within the census block groups by using the GIS
mapping program.
Measuring Crime and Disorder Incidents
For the analyses below we rely on crime incident report data collected by the City of
Toledo Police Department Computer Automated Dispatch (CAD). This included records of
dispatches or calls for service (CFS) that were either police-initiated or calls from the public
during the five years. Each record contained the date, time, location, and the disposition of the
call. In this study we employ only the calls for service for which a report or arrest is made.
During the period between January 1998 and December 31, 2002, the Toledo Police Department
had dispatch records for 1074 incidents of sexual assault and rape, 248 prostitution incidents, and
377 obscene activities.
Locating the Crime Incident Calls for Service by Address
The crime incident data were then plotted by address in Toledo using Maptitude 4.5.
Initially, an attempt was made to plot all calls based upon the street name and address using the
very strict location criterion option (i.e., only those addresses for which an exact street name and
number match to those stored in Maptitude are plotted). This resulted in the plotting of roughly
90% of all calls for service. We then use the normal criterion to locate the rest of incidents by
allowing for some misspelling of street names by the police. This procedure allowed the GIS
program to plot an additional eight-percent of calls for services. The remaining two-percent of the
calls were not plotted.
Results
A series of hierarchical ordinary least squares (OLS) regression were conducted. The
population, demographic and social disorganization variables were entered into the regression
equation in the first four blocks. The alcohol serving establishment predictor variable (adult
business cabarets were eliminated from this stage) was then entered into the model. This was
followed by a block measuring the presence or absence of adult cabarets. A summary of results
of the hierarchical regression analyses for sexual assault and rape, prostitution, and obscene
activity calls for service events in Toledo are displayed in Table 1.

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Sexual Assault and Rape


In Toledo, the hierarchical regression model explained 54 percent of the variability in
sexual assault and rape incidents across census block groups (R2 = .54). The first variable cluster
measuring population and geographic area accounted for five-percent of the variability. The
addition of the demographic variables set added another 39 percentage points to the explanatory
power of the model. The addition of the next block of variables contributed five additional
percentage points to the models explanatory power. The block measuring the housing variables
was statistically significant and explained an additional four-percent of variability. The addition
of the single variable measuring alcohol-serving establishments added approximately two-
percent to the models predictive power. Finally, the variable measuring the presence of an
adult cabaret added no statistically significant predictive power to the model.
Prostitution
As can be seen from Table 1, the hierarchical regression analyses for prostitution calls for
service events in Toledo accounted for 30 percent of the variability in these crime incidents
across census block groups. The first variable cluster measuring population and geographic area
was not a significant contributor to predicting prostitution incidents in Toledo. In the second
step, the addition of the demographic variables set added a statistically significant 15 percent
explanatory power to the overall model. The addition of the next block of variables significantly
contributed nine percentage points to the models total explanatory power. The block measuring
the housing variables was statistically significant and contributed an additional four-percent to
the model. The addition of the single variable measuring alcohol-serving establishments added
approximately three percent to the models predictive power. Finally, the variable measuring the
presence of an adult cabaret added no statistically significant predictive power to the model.
Obscene Activities
The hierarchical regression analyses for public obscene events in Toledo explained 33
percent of the variability in these crime incidents across census block groups. The first variable
cluster measuring population and geographic area is significant contributor accounting for almost
five percent of the total variability in the model. In the second step, the addition of the
demographic variables set added a statistically significant almost 13 percent explanatory power
to the overall model. The addition of the next block of variables significantly contributed about
four and one half percentage points to the models total explanatory power. The block

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measuring the housing variables was statistically significant and contributed an additional seven
percent to the model. The addition of the single variable measuring alcohol-serving
establishments added approximately three percent to the models predictive power. The variable
measuring the presence of an adult cabaret added was significant and added approximately three-
percentage point to the explanatory power of the model. Overall the result of this regression
analysis suggests that although the presence of an adult cabaret may be a statistically significant
factor, social economic status, demographics, and the presence of non-adult alcohol serving
establishments are far better predictors of where these obscene activities occur in Toledo.
Comparison of alcohol serving and cabarets in terms of sex crimes
Although our regression analyses revealed that the presence of non-adult alcohol serving
establishments is a far better predictor of sex related crime incidents than the presence of adult
cabarets in Toledo, one may still argue that sex crimes may occur on the premises of these
cabarets more frequently than non-adult alcohol serving businesses. In other words adult cabarets
may not be located in areas where sex crimes frequently occur, but these cabarets themselves
may be the hotspots of such crimes incidents as compared to a non-adult alcohol serving club.
To test this possibility, we compared the number of sex crime related police dispatches to non-
adult alcohol serving establishments and adult cabarets in Toledo. The result of this analysis
suggests 13 non-adult alcohol-serving businesses in Toledo were the source of at least one sex-
related incident in the period of five years. In contrast, zero sex-related crime incidents were
reported at the three adult cabarets in Toledo.
The Columbus Study
Method
A comprehensive list of adult cabaret businesses was obtained from the City of
Columbus. Fifteen alcohol serving adult cabarets establishments were identified and included in
the present study. We also obtained a comprehensive list of alcohol serving licensees in
Columbus who were issued licenses to sell alcoholic beverages by the Ohio Department of
Commerce, Division of Liquor Control. These business addresses were located within each of
census block groups using a Maptitude 4.5.
Measuring Crime and Disorder Incidents
For the analyses below we relied on crime incident report data collected by the City of
Columbus Police Department Computer Automated Dispatch (CAD). This included records of

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dispatches or calls for service that were either police-initiated or calls from the public in a period
of five years from January 1, 1998 to December 31, 2002. Each record contained the date, time,
and location of the call and the disposition of the call. In this study we employ only the calls for
service for which a report or arrest is made. Due to the nature of radio codes used by Columbus
Police Department, finer categorization of sex offenses is impossible. A general sex offenses
category was used to indicate all sex crimes in progress and sex crime reports. A total of 3580
sex offense incidents were included in the police calls for service data during the five year
period.
Locating the Crime Incident Calls for Service by Address
The crime incident data were plotted by address in Columbus using Maptitude 4.5.
Initially, an attempt was made to plot all calls based upon the street name and address using the
very strict location criterion option. This resulted in the plotting of roughly 92-percent of all
calls for service. Next, we used the normal criterion that allows for some misspelling of street
names by the police the remaining addresses to plot an additional seven-percent of total calls for
service. The remaining one-percent of the calls were not plotted.
Results
Using the same groups of variables described in the Toledo analysis above, a hierarchical
multiple regression analysis was conducted to predict sex offense incidents in Columbus, OH.
The population, demographic and social disorganization variables were entered into the
regression equation in the first four blocks. The alcohol serving establishment predictor variable
(adult business cabarets were eliminated from this stage) was then entered into the equation.
This was followed by a variable measuring the presence or absence of adult cabarets.
The result of this hierarchical regression analysis is displayed in Table 2. The table
displays the variables that were entered at each of the six different stages and how much variance
in sex assaults and rape events across the census block groups in Columbus is accounted for at
each stage. As can be seen from the table, the overall regression model successfully accounted
for 40 percent of the variability in sex offense incidents across census block groups.
The first variable cluster measuring population and geographic area accounted for 1.5-
percent of the variability. The addition of the demographic variables set added another 28-
percent to the explanatory power of the model. The next block of variables measuring social
economic status and education contributed statistically significant six-percentage points to the

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models explanatory power. The block measuring the housing variables, although was
statistically significant, only contributed an additional two-percent to the model. The addition of
the single variable measuring alcohol-serving establishments added approximately three
percentage points to the models predictive power.
Finally, the variable measuring the presence of an adult cabaret added no statistically
significant predictive power to the model. In fact, the analyses revealed a negative beta
coefficient for the variable measuring the presence of adult cabarets in the last step of the
regression model.
Comparison of Alcohol Serving and Cabarets
To test the possibility that sex offenses may have higher occurrences at the adult cabarets
than at the non-adult alcohol serving establishments despite the fact that they are not located in
areas where such incidents frequently occur, we conducted an analysis comparing the number of
sex offense police dispatches to non-adult alcohol serving establishments and adult cabarets in
Columbus. This analysis revealed that the 22 non-adult establishments were associated with a
total of 30 sex offenses in five years of available data. However, there were only two sex
incidents during the same five-year period at the 15 alcohol-serving adult cabarets.
The Dayton Study
Method
Locating the Adult Cabarets and Alcohol Serving Establishments
A comprehensive list of adult cabarets, adult video/bookstores and other adult businesses
was obtained from the City of Dayton, OH. The five alcohol-serving adult cabarets
establishments were examined in the Dayton study. A comprehensive list of alcohol serving
establishments in Dayton with alcohol serving licenses issued by the Ohio Department of
Commerce, Division of Liquor Control was also obtained. These business addresses were
located and plotted within the census block groups.
Measuring Crime and Disorder Incidents
In the Dayton study, we relied on crime data reported by the Dayton Police Department
to the National Incident Based Reporting System (NIBRS) in a four-year period of time from
1/1/1999 to 12/31/2002. NIBRS is an incident-based reporting system for crimes known to the
police. For each crime incident coming to the attention of law enforcement, a variety of data are
collected about the incident. These data include the nature and types of specific offenses in the

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incident, characteristics of the victim(s) and offender(s), types and value of property stolen and
recovered, and characteristics of persons arrested in connection with a crime incident.
The NIBRS improves on the Uniform Crime Reports (UCR) by examining a large
number of detailed offense categories at an incident-based level, eliminating the hierarchy rule of
choosing one primary crime per incident, and forming a hierarchical record structure to link
victims, offenders, offenses, and arrested persons to every incident. Similar to UCR, NIBRS is a
crime-reporting database; that is, only crimes reported to and recorded by law enforcement
agencies are included in the database. Unlike CAD, which is a comprehensive index of police
activity concerning calls for service that may not result in a crime being recorded, NIBRS data
only includes crime activity verified by the police.
Based on the codebook provided by the National Archive of Criminal Justice Data, three
categories of sex crimes were devised in this study: 1) Forcible Rape, which included Forcible
Rape, Forcible Sodomy, Sexual Assault with an Object, and forcible fondling. 2) Prostitution,
and 3) Other Sex Crimes, which included Obscenity, Statutory Rape, Incest, and Peeping Tom.
During the four years for which we had data, there were 940 forcible rape incidents, 1970
prostitution incidents, and 111 other sex crimes.
Locating the Crime Incident Calls for Service by Address
The crime incident data were plotted by address in Dayton, OH, using Maptitude GIS
software. Because each crime incident included the NIBRS data was recorded with high levels of
precision, we were able to plot all 100% of crime incidents using the very strict mapping
criterion.
Results
Using the same groups of geographical, demographic, and social economic variables used
in the Toledo and Columbus analyses above, a series of hierarchical multiple regression analyses
were conducted to predict sex crimes in Dayton, OH (see Table 3). The population,
demographic and social disorganization variables were entered into the regression equation in the
first four blocks. The alcohol serving establishment predictor variable (adult business cabarets
were eliminated from this stage) was then entered into the equation. This was followed by a
variable measuring the presence or absence of adult cabarets.

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Predicting Forcible Rape Crime Incidents


The result of this hierarchical regression analysis successfully accounted for 50 percent of
the variability in forcible rape crime incidents across census block groups. The first variable
cluster measuring population and geographic area accounted for four percent of the variability.
The addition of the demographic variables set added another 27 percent to the explanatory power
of the model. The next block of variables measuring social economic status and education
accounted for 14 percent of the total variability in rape crime. The block measuring the housing
variables, although was statistically significant, only contributed an additional four percent to the
model. The addition of the variable measuring alcohol-serving establishments added
approximately three and one half percent to the models predictive power. Finally, the variable
measuring the presence of an adult cabaret added no statistically significant predictive power to
the model.
Similar to the Columbus results, the hierarchical regression analysis for forcible rape
revealed a negative but non-significant beta coefficient for the variable measuring the presence
of adult cabarets in the last step of the regression model.
Predicting Prostitution Incidents
The overall regression model successfully accounted for 33 percent of the variability in
prostitution incidents crimes across census block groups. The first variable cluster measuring
population and geographic area accounted for three percent of the variability. The addition of the
demographic variables set added another five percent to the explanatory power of the model.
The next block of variables measuring social economic status and education accounted for nine
percent of the total variability in rape crime. The block measuring the housing variables,
although was statistically significant, only contributed an additional Seven and one half percent
to the model. The addition of the variable measuring alcohol-serving establishments added
approximately eight percent to the models predictive power. Finally, the variable measuring the
presence of an adult cabaret added no statistically significant predictive power to the model.
In addition, we again found a negative beta coefficient for the variable measuring the
presence of adult cabarets in the last step of the regression model.
Predicting Other Sex Crimes
The result of a third hierarchical regression analysis suggests that the overall model
successfully accounts for almost 30 percent of the variability in other sex crimes across census

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block groups. The first variable cluster measuring population and geographic area was not
statistically significant. The addition of the demographic variables set added a significant 14
percent to the explanatory power of the model. The next block of variables measuring social
economic status and education accounted for six percent of the total variability in rape crime.
The block measuring the housing variables, although was statistically significant, only
contributed close to three percent to the model. The addition of the variable measuring alcohol-
serving establishments added approximately five and one half percent to the models predictive
power. Finally, the variable measuring the presence of an adult cabaret added no statistically
significant predictive power to the model. Once again, we found a negative beta coefficient for
the variable measuring the presence of adult cabarets in the last step of the regression model.
Comparison of Alcohol Serving Nonadult and Adult Cabarets
To test the possibility that sex crimes may occur more frequently at the adult cabarets
than at the non-adult alcohol serving establishments despite the fact that they are not located in
areas where sex crimes frequently occur, we conducted an analysis comparing the number of
different types of sex crimes at non-adult alcohol serving establishments and adult cabarets in
Dayton. We found that 14 non-adult alcohol-serving establishments had a total of 41 sex
offenses during 1/1/1999 and 12/31/2002 that were officially registered by the police using the
NIBRS. However, there is not a single sex crime at the five adult cabarets during the same four-
year period. It is clear that adult cabarets in Dayton do not have a higher sex crime rate than
non-adult alcohol serving clubs.
The Cleveland Study
Method
Locating the Adult Cabarets and Alcohol Serving Establishments
The Cleveland analysis examined 12 alcohol-serving adult establishments. We obtained a
comprehensive list of alcohol serving licensees in Cleveland who were issued licenses to sell
alcoholic beverages by the Ohio Department of Commerce, Division of Liquor Control. These
business addresses were located and mapped within the census block groups by using Maptitude
4.5.
Measuring Crime and Disorder Incidents
The City of Cleveland Police Departments CAD records from December 31, 1997 to
February 28, 2003 were examined in this study. Each record contained the date, time, type, and

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location of the call. Due to limitations of the dataset provided by the Cleveland Police
Department, we were not able to select only those calls for service for which a report or arrest is
made. For the 5-years available CAD data, there were 953 rape incidents, 1205 prostitution
incidents, and 1803 pubic indecency incidents.
Locating the Crime Incident Calls for Service by Address
The sex crime incident data were plotted by address using Maptitude 4.5. The initially
attempt plot all calls based upon the street name and address using the very strict location
criterion option resulted in the plotting of roughly 86% of all incidents. Next, we used the
normal criterion to allow for an additional 8% plotting rate. The remaining 6% of the calls were
not plotted.
Results
A series of hierarchical multiple regression analyses were conducted to predict three
types of sex crimes in Cleveland, OH (see Table 4). The population, demographic and social
disorganization variables were entered into the regression equation in the first four blocks. The
alcohol serving establishment predictor variable (adult business cabarets were eliminated from
this stage) was then entered into the equation.
Predicting Rape Incidents
The overall regression model successfully accounted for 44 percent of the variability in
rape crimes across census block groups. The first variable cluster measuring population and
geographic area accounted for almost three percent of the variability. The addition of the
demographic variables set added another 30 percent to the explanatory power of the model. The
next block of variables measuring social economic status and education accounted for seven and
one half percent of the total variability in rape crime. The block measuring the housing
variables, although was statistically significant, only contributed an additional one percent to the
model. The addition of the variable measuring alcohol-serving establishments added
approximately two percent to the models predictive power. Finally, the variable measuring the
presence of an adult cabaret added no statistically significant predictive power to the model.
Predicting Prostitution Incidents
The overall regression model successfully accounts for 23 percent of the variability in
prostitution incidents across census block groups. The first variable cluster measuring population
and geographic area accounted for one-percent of the variability. The addition of the

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demographic variables set added another 14 percent to the explanatory power of the model. The
next block of variables measuring social economic status and education accounted for five-
percent of the total variability in rape crime. The block measuring the housing variables,
although was statistically significant, only contributed an additional three-percent to the model.
The addition of the variable measuring alcohol-serving establishments added approximately
seven tenth of a percent to the models predictive power. Finally, the variable measuring the
presence of an adult cabaret added no statistically significant predictive power to the model.
Predicting Public Indecency and Indecent Exposure
The overall regression model successfully accounts for almost 45 percent of the
variability in public indecency incidents across census block groups. The first variable cluster
measuring population and geographic area was statistically significant and contributed close to
three percent of the total variability in indecent exposure and public indecency calls for service.
The addition of the demographic variables set added a significant 28 percent to the explanatory
power of the model. The next block of variables measuring social economic status and education
accounted for nine percent of the total variability in rape crime. The block measuring the
housing variables, although was statistically significant, only contributed close to two percent to
the model. The addition of the variable measuring alcohol-serving establishments added
approximately three percent to the models predictive power. Finally, the variable measuring the
presence of an adult cabaret added no statistically significant predictive power to the model.
Comparison of Alcohol Serving Nonadult and Adult Cabarets
To test the possibility that sex crimes may occur more frequently at the adult cabarets
than at the non-adult alcohol serving establishments despite the fact that they are not located in
areas where sex crimes frequently occur, we conducted a analysis comparing the number of
different types of sex crimes at non-adult alcohol serving establishments and adult cabarets in
Cleveland. The result of this analysis suggests that 28 non-adult alcohol-serving clubs reported a
total of 36 sex related calls for service during 12/31/1997 and 2/28/2003, while there were only 2
sex related calls for service from the 12 adult cabarets during the same five-year period. Adult
cabarets in Cleveland do not have a higher sex crime rate than non-adult alcohol serving clubs.
DISCUSSION
In order to test the assumption that adult cabarets that serve alcohol are associated with
negative secondary effects, an empirical study of prostitution, sexual assault and other sexual

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offenses in Toledo, Dayton, Columbus and Cleveland, Ohio was undertaken utilizing crime
event data provided by the police (computer aided dispatch and NIBRS data). The following
research question was posed: Once variables known to be related to crime events suggested by
Social Disorganization and Routine Activities theories have been statistically controlled, does the
presence of adult entertainment in an alcohol serving establishment increase sex related crimes
above and beyond those crimes at alcohol serving establishments that do not present such
entertainment? The results revealed that the adult businesses were not the primary source of sex
crime events. Often these businesses actually showed zero sex crime events. Instead, alcohol
serving, non-adult establishments are often a significant source of such events.
Consistency with Previous Research
Few studies have been undertaken to test the assumption made by state liquor control
boards that there are more effects and the effects are of a greater degree of intensity and harm in
communities with business establishments that serve alcohol and feature exotic dancing and
nudity. The research that has been undertaken in other states is consistent with the results
obtained in the present study of Ohio cities. Researchers have estimated the effects of social
disorganization variables, alcohol sites, and adult cabarets on police calls for service at the
census block level in Daytona Beach Florida.40 The same study also matched (based on census
socioeconomic and demographic characteristics) 1000-foot perimeter control-sites, with those of
the adult cabaret perimeters to help isolate the sources of crime. The regression analysis showed
no association between adult cabarets serving alcohol and crime at the census block level.
Rather, the results indicated that social disorganization and alcohol establishments that did not
feature sexually explicit communication or entertainment were better predictors of crime.
Similarly, research has shown that adult businesses that served alcohol were not associated with
crime in Charlotte, North Carolina.41
Researchers have also examined the link between sexual entertainment, sexual aggression
and the presence of adult businesses and the prediction of statewide rape rates in Florida.42 This
study examined whether rates of crime are associated with the rates of adult businesses in the 67
counties of Florida once other variables related to crime are controlled. Rates per 100K people
in the population were computed for the numbers of nonsexual adult businesses: drinking
establishments, gambling establishments, and hotels and motels in each county. These measures,
along with measures of social disorganization and demographic variables, were examined for

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their relative ability to predict Uniform Crime Reports. The model estimated in this research
explained 34 percent of the variance in rates of rape with three variables making significant
contributions to prediction of rates of rape: percentage of the population that is classified as non-
White, the number of drinking establishments per 100K population and the number of nude and
semi-nude businesses per 100K population. However, the correlation for the presence of adult
businesses in Florida as was the case in the analyses for two of the Ohio cities examined in the
present study was negative.
Finally, a study recently conducted by Enriquez, Cancino and Varano shows results
remarkably similar to the present study.43 These authors found that after controlling for
socioeconomic and demographic community characteristics associated with social
disorganization, weak institutional dimensions such as alcohol outlets was statistically significant
and the magnitude trumped other predictor coefficients in the models. The coefficients for adult
cabaret establishments were consistently weak and insignificant in each of the models. The
authors concluded that the empirical evidence was inconsistent with the San Antonio City
Council's contention that the presence of adult establishments produces crime. Instead, the
authors contend that the results of their study point to weak institutions, namely alcohol outlets
and other community characteristics associated with social disorganization theory as causes and
correlates of crime.
Implications for Assumptions Underlying California v. la Rue
The United States Supreme Court has ruled that a state may prohibit the actual or
simulated touching, caressing, or fondling of the breast, buttocks, anus or genitals in
establishments licensed to sell liquor.44 State liquor control boards across the country and
specifically, in Ohio have accepted the premise that combining liquor service with adult
entertainment leads to greater adverse secondary effects than merely serving liquor alone. This
premise is not supported by either the current research or past studies.
What does the lack of empirical evidence of a relationship between sexually oriented
businesses in the community and secondary crime effects mean, regarding the Ohio liquor
control boards underlying rationale for regulating sex oriented businesses despite a lack of
empirical evidence of adverse secondary effects? It may be an incidence of what Justice Souter
in the City of Los Angeles v. Alameda Books, Inc. has referred to as a weak demonstration of
facts indicating viewpoint discrimination.45

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In Alameda Justice Souter has said that sound empirical investigations of presumed
adverse secondary effects are helpful in guarding against unconstitutional restrictions of freedom
of sexual speech. Lacking empirical proof of its own the state of Ohio may be engaging in
disapproval of adult speech rather than attempting to regulate sex communication out of concern
for adverse secondary effects.
Explaining the Lack of Crime Surrounding Exotic Dance Clubs
Results from previous studies and the results from the present study suggest either no
relationship or even a negative relationship between the presence of alcohol serving adult
entertainment establishments and adverse secondary effects in the form of sex related crime
activity.
One possible explanation of the lack of crime effects is that many of the victims of crime
in these areas might not want to draw attention to themselves by reporting victimization to the
police because of the stigma associated with visiting or working at adult dance establishments. It
is possible that this may be a plausible alternative explanation for crimes such as robbery; it
would not be a reasonable explanation for serious personal assault such as rape and sexual
assault. Nor, is it a particularly good alternative explanation for the lack of prostitution and other
vice crimes surrounding adult dance cabarets--as these incidents would be most likely to reflect
police activity rather than reporting tendencies among victims.
The nature of the data employed in the study may also work against such an alternative
explanation. In the Dayton study, we relied on crime data reported by the Dayton Police
Department to the National Incident Based Reporting System (NIBRS). Only crimes reported to
and recorded by law enforcement agencies are included in this database. Unlike CAD, which is a
comprehensive index of police activity concerning calls for service that may not result in a crime
being recorded, NIBRS data only includes crime activity verified by the police.
In actuality, the null findings may not be surprising given developments in the adult
nightclub business over the last decade. First, the adult nightclub business in the late-1990s in
many respects may be quite unlike that of the 1960s and 1970s when these establishments were
relatively new forums of entertainment in American society. Adult nightclubs have been
subjected to over two decades of municipal zoning restrictions across the country, and they
usually must comply with many other regulations as well. These clubs do not appear to be
locations where potential offenders gather to prey on desirable targets in the absence of crime

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suppressors, such as employees whose role is to ensure the safety of customers and the
maintenance of order within the clubs.
The establishments themselves have evolved more closely into legitimate businesses
establishments with management attention to profitability and continuity of existence. To meet
these objectives, it is essential that the management and/or owners of the clubs provide their
customers with some assurance of safety. Accordingly, adult nightclubs, including those in the
Ohio cities under investigation, often appear to have better lighting in their parking lots and
better security surveillance than is standard for non-nightclub business establishments. These
may be factors producing fewer crime opportunities and lower numbers of reported crime
incidents in the surrounding areas of the clubs. The extensive management of the parking lots
adjoining the exotic dance nightclubs, in many cases including guards in the parking lots, valet
parking, and other control mechanisms, may be especially effective in reducing the possibility of
violent disputes in the surrounding area. In addition, unlike other liquor-serving establishments
(bars and taverns that do not offer adult entertainment) that may be present in the control areas,
violent disputes in the areas surrounding exotic dance clubs between men over unwanted
attention by other males to dates or partners are minimal due to the fact that the majority of
patrons attend the clubs without female partners. Thus, the possibility of sexual aggression may
be greatly reduced in the vicinity of adult dance clubs, compared to most other locations where
adults congregate, such as bars or taverns that do not feature adult entertainment.

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Tables
Table 1: Summary of hierarchical regression analyses for natural-logged sex crime calls for
service incidents in Toledo, OH. (N = 340).

Sexual Assault & Rape Prostitution Obscene

R2 Change F Change R2 Change F Change R2 Change F Change

Step 1 0.052 9.27*** 0.008 1.33 0.046 8.08***

Step 2 0.387 57.55*** 0.146 14.44*** 0.126 12.75***

Step 3 0.048 6.15*** 0.086 7.4*** 0.044 3.74**

Step 4 0.035 11.87*** 0.041 9.33*** 0.071 16.22***

Step 5 0.018 12.57*** 0.027 12.66*** 0.032 15.511***

Step 6 0.002 1.67 0.004 1.72 0.013 6.36*


Note. The total R2 for the regression model predicting sexual assault and rape is .54; the total R2
for the regression model predicting prostitution is .31; the total R2 for the regression model
predicting obscene activities is .33.
*
p < .05, ** p < .01 *** p < .001

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Table 2: Summary of hierarchical regression analyses for natural-logged sex crime calls for
service incidents in Columbus, OH. (N = 737).

Sex Crimes

R2 Change F Change

Step 1 0.015 5.67**

Step 2 0.280 72.57***

Step 3 0.058 13.04***

Step 4 0.019 10.82***

Step 5 0.033 40.49***

Step 6 0.000 0.07


Note. The total R2 for the regression model predicting sex crimes is .41.

The Beta coefficient for Step 6, a single variable for the presence and absence of adult cabarets
in a census block is -.008, p = .792.
**
p < .01, *** p < .001

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Table 3: Summary of hierarchical regression analyses for natural-logged sex crime calls for
service incidents in Dayton, OH. (N = 405).

Forcible Rape Prostitution Other Sex Crimes

R2 Change F Change R2 Change F Change R2 Change F Change

Step 1 0.042 8.80*** 0.030 6.31** 0.013 2.58

Step 2 0.266 38.13*** 0.052 5.68*** 0.139 16.39***

Step 3 0.135 19.13*** 0.090 8.58*** 0.061 6.07***

Step 4 0.040 14.97*** 0.076 19.96*** 0.028 7.25***

Step 5 0.035 28.34*** 0.078 45.14*** 0.053 29.31***

Step 6 0.003 2.66 0.003 1.52 0.001 0.54


Note. The total R2 for the regression model predicting forcible rape is .52; the total R2 for the
regression model predicting prostitution is .33; the total R2 for the regression model predicting
other sex crimes is .30.

The Beta coefficient for Step 6, a single variable for the presence and absence of adult cabarets
in a census block is -.06, p = .10.

The Beta coefficient for Step 6, a single variable for the presence and absence of adult cabarets
in a census block is -.053, p = .22.

The Beta coefficient for Step 6, a single variable for the presence and absence of adult
cabarets in a census block is -.033, p = .46.
**
p < .01, *** p < .001

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Table 4: Summary of hierarchical regression analyses for natural-logged sex crime calls for
service incidents in Cleveland, OH. (N = 1029).

Rape Prostitution Indecency

R2 Change F Change R2 Change F Change R2 Change F Change

Step 1 0.027 14.28*** 0.012 5.99*** 0.029 15.34***

Step 2 0.300 113.90*** 0.138 41.40*** 0.279 103.07***

Step 3 0.075 25.64*** 0.050 12.69*** 0.092 31.28***

Step 4 0.013 10.93*** 0.034 22.62*** 0.021 18.77***

Step 5 0.020 35.52*** 0.007 9.76** 0.031 57.69***

Step 6 0.001 1.01 0 0.001 0 0.003


Note. The total R2 for the regression model predicting rape is .44; the total R2 for the regression
model predicting prostitution is .24; the total R2 for the regression model predicting public
indecency is .45.
**
p < .01, *** p < .001

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References and Notes

1 Adult consumer watching more cable, pay-per-view; Moving online; Sales of sex toys surge: Blue entertainment
market approaching $13 billion in sales in U.S. alone. Adult Video News, January 04, 2007.
2 John McCarthy, Rules discussed for strip clubs, land grabs. Tue, Mar. 20, 2007 (Associated Press).
3 See Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). See also, City of Renton v Playtime Theatres Inc.,
475 U.S. 41 (1986).
4 Brandon K. Lemley, Effectuating Censorship: Civic Republicanism and the Secondary Effects Doctrine, 35 J.
Marshall L. Rev. 189, 192 n.13 (2002)
5 See United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000) (stating that "a content-based speech
restriction" is constitutional "only if it satisfies strict scrutiny," which requires that a statute "be narrowly tailored
to promote a compelling Government interest").
6 See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 43 (1986) (upholding ordinance "that prohibits adult
motion picture theatres from locating within 1,000 feet of any residential zone, single- or multiple-family
dwelling, church, park, or school"); see also Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 72-73 (1976)
(upholding zoning ordinances limiting location of adult motion picture theatres).
7 See Pap's A.M., 529 U.S. at 283-84 (upholding as content-neutral ordinance that banned public nudity and
required dancer to wear "pasties" and "G-string" to comply); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560,
563 (1991) (rejecting claim made by owners of nude dancing establishments that "the First Amendment's
guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to
prevent this form of dancing").
8 See, e.g., Robin Huiras, Amity, Pa., Tavern Applies to Extend Hours for Exotic Dance Performances, Reading
Eagle (Reading, Pa.), May 6, 2003, 2003 WL 20269373 (discussing Amity, Pennsylvania ordinance that "limits
the time for live entertainment from 9 a.m. to 9 p.m." in adult entertainment establishments).
9 See, e.g., Editorial, Reaching into Clubs for a 4-Foot Rule, Seattle Times, Sept. 23, 2003, at B6 (describing
regulations in King County and Snohomish County, Washington, that impose four-foot buffer zones between
entertainers and customers "to curb fondling and lap dancing")
10 California v. la Rue, 409 U.S. 109 (1972).
11 The Twenty-first Amendment provides, "[t]he transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof,
is hereby prohibited." U.S. Const. amend. XXI, <section> 2.
12 California v. la Rue, 409 U.S. 109 (1972).
13 LaRue, 409 U.S. at 118.
14 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), 515-16.
15 44 Liquormart. at 516
16 See, e.g., Jott, Inc. v. Charter Township of Clinton, 569 N.W.2d 841, 854-55 (Mich. App. 1997) (regulation
banning nudity in establishments that sold alcoholic beverages was constitutional as a measure to eradicate the

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effects of undesirable behavior stemming from a combination of alcohol and nudity) (emphasis added);
Lounge Management, Ltd. v. Trenton, 580 N.W.2d 156, 161-62 (Wis. 1998), cert. denied, 119 S.Ct. 511 (1998)
(ordinance which prohibited all depictions of nudity -- whether live or pictorial -- in all business establishments
was unconstitutionally overbroad because the regulation had no connection to the potential harmful secondary
effects arising from nude dancing in liquor licensed establishments) (emphasis added); New York State Liquor
Authority v. Bellanca, 452 U.S. 714, 718, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (in upholding a regulation that
banned topless dancing in establishments that were licensed to serve alcoholic beverages, the Court cited to the
New York State Legislative Annual 150 (1977), which stated that [c]ommon sense indicates that any form of
nudity coupled with alcohol in a public place begets undesirable behavior) (emphasis added); City of Newport,
Kentucky v. Iacobucci, 479 U.S. 92, 96, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986) (the city commission in the
preamble to an ordinance prohibiting nude or nearly nude activity on premises licensed to sell alcoholic
beverages had determined that nude dancing in establishments serving liquor was injurious to the citizens of
the city) (emphasis added). See also, California v. La Rue, 409 U.S. 109, 114, 118, 93 S.Ct. 390, 34 L.Ed.2d
342 (1972); and Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).
17 See Shaw, C. R., & McKay, H. D. Juvenile delinquency and urban areas: A study of rates of delinquency in
relation to differential characteristics of local communities in American cities, Chicago, University of Chicago
Press (1942).
18 See Shaw & McKay.
19 See Bursik, R. J., Jr., Social disorganization and theories of crime and delinquency: Problems and prospects,
Criminology (1988). See also, Sampson, R. J., & Groves, W. B. Community structure and crime: testing social
disorganization theory, American Journal of Sociology (1989). See also, Sampson, R. J., Raudenbush, S. W.,
Earls, F., Neighborhood and violent crime: a multilevel study of collective efficacy, Science (1997). See also,
Sampson, R. J., & Raudenbush, S. W., Systemic social observation of public spaces: a new look as disorder in
urban neighborhoods, American Journal of Sociology (1999). See also, Osgood, D. W., & Chambers, J. M.,
Social disorganization outside the metropolis: an analysis of rural youth violence Criminology (2000).
20 See Peterson, R. D., Krivo, L. J., & Harris, M. A., Disadvantage and neighborhood violent crime: Do local
institutions matter? Journal of Research in Crime and Delinquency (2000). See also, Alaniz, M. L., Cartmill, R.
S., & Parker, R. N., Immigrants and violence: The importance of neighborhood context. Hispanic Journal of
Behavioral Sciences (1998).
21 See Sampson, R. J., & Groves, W. B., Community structure and crime: testing social disorganization theory.
American Journal of Sociology (1989).
22 See Smith, D. A., & Jarjoura, G. R., Household characteristics, neighborhood composition, and victimization
risk, Social Forces (1989). See also, Rountree, P. W., Land, K. C., & Miethe, T. D., Macro-micro integration
in the study of victimization: a hierarchical logistic model analysis across Seattle neighborhoods, Criminology
(1994). See also, Lynch, J. P., & Cantor, D., Ecological and behavioral influences on property victimization at
home: implications for opportunity theory, Journal of Research in Crime and Delinquency (1992).

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23 See Byrne, J. M., & Sampson, R. J. Key issues in the social ecology of crime (J. M. Byrne, & R. J. Sampson,
Eds.), The Social Ecology of Crime (1986).
24 See Peterson, R. D., Krivo, L. J., & Harris, M. A. Disadvantage and neighborhood violent crime: Do local
institutions matter? Journal of Research in Crime and Delinquency (2000). See also, Nielsen, A. L., &
Martinez, R., Jr., Reassessing the alcohol-violence linkage: Results from a multiethnic city, Justice Quarterly
(2003).
25 See Covington, J. African American communities and violent crime: The construction of race differences,
Sociological Focus (1999). See also, Zahn, M., Homicide and public policy, Ninth Annual Walter C. Reckless
Memorial Lecture: Criminal Justice Research Center: Ohio State University (1998).
26 See Bursik, R. J. Jr., & Grasmick, H. G. Neighborhoods and Crime (1993).
27 Sullivan. M. L., Puerto Ricans in Sunset Park, Brooklyn: Poverty amidst ethnic and economic diversity, (J.
Moore, & R. Pinderhughes, Eds) In the Barrios: Latinos and the Underclass Debate (1993).. See also, Scribner,
R. A., MacKinnon, D. P., & Dwyer, J. H. Relative risk of assaultive violence and alcohol availability in Los
Angeles County, American Journal of Public Health (1995).
28 See Peterson, R. D., Krivo, L. J., & Harris, M. A. Disadvantage and neighborhood violent crime: Do local
institutions matter? Journal of Research in Crime and Delinquency (2000).
29 See Quimet, M. Aggregation bias in ecological research: How social disorganization and criminal opportunities
shape the spatial distribution of juvenile delinquency in Montreal, Canadian Journal of Criminology (2000).
30 Watts, R. K., & Rabow, J., Alcohol availability and alcohol related problems in 213 California cities,
Alcoholism: Clinical and Experimental Research (1983).
31 See Roncek, D. W., & Bell, R., Bars, blocks, and crime, Journal of Environmental Systems (1981). See also
Roncek, D. W., & Maier, P. A., Bars, blocks, and crimes revisited: Linking the theory of routine activities to the
empiricism of hot spots, Criminology (1991).
32 See Scribner, R. A., MacKinnon, D. P., & Dwyer, J. H., Relative risk of assaultive violence and alcohol
availability in Los Angeles County, American Journal of Public Health (1995). See also, Sherman, L. W.,
Gartin, E., & Buerger, M. E., Hot spots of predatory crime: Routine activities and the criminology of place,
Criminology (1989). See also, Roncek, D. W., & Maier, P. A., Bars, blocks, and crimes revisited: Linking the
theory of routine activities to the empiricism of hot spots, Criminology (1991). See also, Watts, R. K., &
Rabow, J., Alcohol availability and alcohol related problems in 213 California cities. Alcoholism: Clinical and
Experimental Research (1983). See also, Nielsen, A. L., & Martinez, R., Jr., Reassessing the alcohol-violence
linkage: Results from a multiethnic city, Justice Quarterly (2003).
33 See Parker, R. N., The effects of context on alcohol and violence, Alcohol Health & Research World (1993).
See also, Parker, R. N., Bringing booze back in: The relationship between alcohol and homicide. Journal of
Research in Crime and Delinquency (1995).
34 See Roncek, D. W., & Bell, R. See also Roncek, D. W., & Maier, P.A. See also, Roncek, D. W., & Pravatiner, M.
A., Additional evidence that that taverns enhance nearby crime, Sociology and Social Research (1989). See

52

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Communication Law Review

also, Zahn, M., Homicide and public policy, Ninth Annual Walter C. Reckless Memorial Lecture: Criminal
Justice Research Center: Ohio State University (1998). See also, Quimet, M. Aggregation bias in ecological
research: How social disorganization and criminal opportunities shape the spatial distribution of juvenile
delinquency in Montreal, Canadian Journal of Criminology (2000).
35 See Nielsen, A. L., & Martinez, R., Jr., Reassessing the alcohol-violence linkage: Results from a multiethnic
city, Justice Quarterly (2003).
36 See Quimet, M. Aggregation bias in ecological research: How social disorganization and criminal opportunities
shape the spatial distribution of juvenile delinquency in Montreal, Canadian Journal of Criminology (2000).
37 See Alaniz, M. L., Cartmill, R. S., & Parker, R. N., Immigrants and violence: The importance of neighborhood
context, Hispanic Journal of Behavioral Sciences (1998).
38 See Menthe, T. D., & Meier, R. F., Crime and its social context: Toward and integrated theory of offenders,
victims, situations (1994).
39 Roncek, D. W., & Maier, P. A., Bars, blocks, and crimes revisited: Linking the theory of routine activities to the
empiricism of hot spots, Criminology (1991). See also, Sherman, L. W., Gartin, E., & Buerger, M. E., Hot
spots of predatory crime: Routine activities and the criminology of place, Criminology (1989).
40 See Linz, D., Fisher, R. & Yao, M., Evaluating potential secondary effects of adult cabarets in Daytona Beach
Florida: A study of calls for service to the police in reference to ordinance 02-496, report amending report of
August 30, 2003, April 7 (2004).
41 Linz, D., Land, K., Williams, J. Ezell, M. & Paul, B., An examination of the assumption that adult businesses
are associated with crime in surrounding areas: A secondary effects study in Charlotte, North Carolina, Law and
Society Review (2004).
42 See Fisher, R.D., Linz, D. & Paul, B., Examining the link between sexual entertainment and sexual aggression:
The presence of adult businesses and the prediction of rape rates in Florida. Paper presented to the Law and
Policy Division at the 2004 annual meeting of the International Communication Association, New Orleans, LA.
(2004).
43 Roger Enriquez, Jeffrey M. Cancino & Sean P. Varano., A legal and empirical perspective on crime and adult
establishments: A secondary effects study in San Antonio, Texas, American University Journal of Gender,
Social Policy & the Law, 15 (2006).
44 See California v. la Rue, 409 U.S. 109 (1972).
45 City of Los Angeles v. Alameda Books Inc. et al., 222 F. 3d 719 (9th Cir.) (2000).

53

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EXHIBIT 5

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Running Head: Erotic Dancing, Liquor, and Crime

Erotic Dancing, Liquor, and Crime: An Empirical Critique of


Virginia Statute Changes Restricting Liquor Service and Adult
Entertainment

Christopher Seaman

and

Daniel Linz

Department of Communication
University of California, Santa Barbara

This paper has been peer reviewed and accepted for


presentation at the 95th Annual Convention of the National
Communication Association, November 12-15, 2009 in
Chicago

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Abstract

Recently, the State of Virginia has changed their statutes regarding the regulation

of sexually oriented businesses with liquor service, ruling that businesses cannot both

carry a mixed beverage license and provide adult entertainment. Virginias statute

changes are ultimately based in the doctrine established by the Supreme Court that local

governments can regulate the time, place, and manner in which adult entertainment is

expressed in order to combat the adverse secondary effects caused by these businesses.

Such adverse secondary effects have largely been thought of in terms of increases in

criminal activity in the vicinity of the business. Statutes such as Virginias assume that

the presence of liquor service with adult businesses causes more secondary effects than

either alone. This assumption is tested in Richmond, Virginia, in which the crime at and

around two Gentlemens Clubs is examined both before and after they received a mixed

beverage license. Crime at and around the adult businesses is also compared to six non-

adult control businesses. The study finds no support for the theory that liquor service and

adult entertainment interact to causes unique increases in criminal activity in the

surrounding community, or even that adult entertainment is associated with increases in

crime at all. Crime was found to actually decrease in the period after the two Gentlemens

Clubs received their mixed beverage license, and instances of crime were more frequent

at control areas than in the areas surrounding the adult business. Previous case law in the

area of secondary effects is reviewed, and implications of the current and previous studies

on the freedom of sexual expression are explored and discussed

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History of the Doctrine of Secondary Effects

Is erotic dancing protected under the First Amendment? While the United States

Supreme Court believes that it is, there have been a series of cases focused on whether

the Free Speech clause of the First Amendment allows cities and states to enact

legislation controlling the location of sexually oriented businesses. Zoning

regulations that prevent a sex-related business from operating a certain number of feet of

so-called sensitive locations (e.g., residential neighborhoods, schools, houses of

worship and/or other adult establishments) have been predicated on the notion that

municipalities have a substantial interest in combating so-called negative secondary

effects" on the neighborhoods surrounding erotic dance businesses.

The first major case decided by the Supreme Court dealing with the regulation of

adult businesses in the community was the 1976 case of Young v. American Mini

Theatre1s. In Young, the Court upheld a Detroit ordinance that required adult theaters not

be within 1000 feet of one another, or within 500 feet of a residential area. The rationale

for this ruling was based in the idea that the ordinance was not in place to eliminate adult

entertainment, but rather to try and mitigate negative secondary effects that adult

businesses cause. The Court drew upon United States v. OBrien2, asserting that the

ordinance did not have the intent nor the effect of suppressing the sexual expression

itself, and the city had a substantial government interest in dispersing adult businesses.

However, in Schad v. Borough of Mount Ephraim3 the Court made it clear that

1
See Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
2
See United States v. O'Brien, 391 U.S. 367 (1968)
3
See Schad v. Borough of Mount Ephraim 452 U.S. 61 (1981)

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outright prohibition of sexual expression in a community was not acceptable. Justice

White, delivering the opinion for the majority wrote:

As the Mount Ephraim Code has been construed by the New Jersey courts -- a
construction that is binding upon us -- "live entertainment," including nude
dancing, is "not a permitted use in any establishment" in the Borough of Mount
Ephraim. App. to Juris.Statement 12a. By excluding live entertainment
throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of
expression that has long been held to be within the protections of the First and
Fourteenth Amendments. Entertainment, as well as political and ideological
speech, is protected; motion pictures, programs broadcast by radio and television,
and live entertainment such as musical and dramatic works, fall within the First
Amendment guarantee.

The issue of negative secondary effects came up again in City of Renton v.

Playtime Theatres Inc4. Much like in Young, the court upheld a zoning ordinance in the

city of Renton that prohibited adult businesses from being within 1000 feet of any

residential area, church, park, or school. The court reaffirmed the previous ruling in

Young, and set out a three prong test to determine whether an ordinance was

constitutional. That is, the ordinance must a) Be content neutral and aimed only at

curbing secondary effects, b) provide alternate avenues of communications and c) further

a substantial government interest. In addition, the Court ruled that cities that wished to

regulate adult businesses were not required to provide evidence of adverse secondary

effects in their own community, but rather could rely on the evidence provided by other

cities to justify an ordinance. Therefore, as long as the evidence borrowed from other

cities is reasonably believed to be relevant to the problem the city faces, then such

evidence is sufficient. As a result of this, most cities have relied upon a core set of studies

conducted by certain municipalities to justify regulating adult businesses within their own

community.
4
See City of Renton v. Playtime Theatres Inc 475 U.S. 41 (1986)

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Until 1991, the Court had only specifically addressed ordinances that zoned adult

businesses away from one another and other sensitive areas, such as residences and

schools. However, in the Supreme Court case of Barnes v. Glen Theatre, Inc5. the scope

of permissible regulations was extended to ordinances that intended to ban public nudity

within adult cabarets. The Court upheld Indianas public indecency law that prohibited

dancers from dancing nude, requiring them to wear at least pasties and G-strings. Rather

than viewing the ordinance as a content restriction, the Court viewed the statute as a time,

place, and manner restriction. The plurality opinion, written by Chief Justice Rehnquist,

argued that the law did not ban erotic dancing outright, and that Indiana had a substantial

government interest in protecting societal order and morality.

City of Erie v. Paps A.M6 would revisit these nudity ordinances when the Court

upheld Erie, Pennsylvanias restriction on nude dancing in adult cabarets. A majority of

the Court agreed that judging the ordinance required the use of the OBrien test and that

the government had a significant interest in combating adverse secondary effects caused

by adult businesses. However, only a plurality ruled that Erie, Pennsylvania had shown

evidence that such effects exist. In his partial dissent, Justice Souter questioned the

evidence used by cities to justify their regulations, noting an amici brief that

demonstrated the flaws with many of the studies commonly used by cities to justify their

regulations.

The evidentiary basis for the regulation of adult businesses was further explored

in Los Angeles v. Alameda Books, Inc7. While the plurality upheld that the city had met

5
See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
6
See Erie v. Pap's A. M., 529 U.S. 277 (2000)
7
See Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)

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the standards set forth in Renton, Justice OConnor, delivering the opinion of the Court,

wrote:

This is not to say that a municipality can get away with shoddy data or
reasoning. The municipalitys evidence must fairly support the municipalitys
rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale,
either by demonstrating that the municipalitys evidence does not support its
rationale or by furnishing evidence that disputes the municipalitys factual
findings, the municipality meets the standard set forth in Renton. If plaintiffs
succeed in casting doubt on a municipalitys rationale in either manner, the
burden shifts back to the municipality to supplement the record with evidence
renewing support for a theory that justifies its ordinance.

Justice Souter, in his dissent, further suggested the possibility that these ordinances could

be abused by municipalities to limit speech that they find distasteful. Therefore, to protect

against such abuses, a higher level of burden on municipalities to demonstrate such

effects would be beneficial. With Alameda, then, the quality of evidence used by the

municipalities in supporting their ordinances could now become a point of contention.

However, despite this, the burden of proof is still upon the sexually oriented

business to cast doubt on the citys rationale. Justice OConnor made clear in her opinion

that cities are not required to show empirical evidence that such an ordinance actually

would reduce crime, stating that requiring that level of evidence would undermine the

cities efforts to experiment with solutions to address secondary effects. Therefore, while

Alameda allows for adult businesses to challenge the evidence and reasoning provided by

the municipality, it does not at all change the evidentiary standards set out in Renton to

initially enact the ordinance.

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Adult Businesses, Liquor, and Secondary Effects

In California v. LaRue8, the Supreme Court held that in licensing bars and

nightclubs to sell liquor by the drink, the States have broad latitude under the Twenty-

first Amendment to control the manner and circumstances under which liquor may be

dispensed. This included, in the Courts opinion, restricting the sale of liquor in

establishments where lewd or naked entertainment was present. Although 44 Liquormart,

Inc. v. Rhode Island9 disavowed La Rues reasoning insofar as it relied on the Twenty-

first amendment, the Supreme Court stressed in that case that LaRues holding remained

intact. Subsequently, the doctrine established in LaRue that states may legally regulate

sex related communication in alcohol serving establishments has been relied upon by

liquor control boards across the country to justify regulation of adult entertainment in

alcohol serving businesses. This is most often based in the idea that the combination of

liquor and erotic dancing together leads to more secondary effects than either one

alone.

Recently,changesweremadetostatutesandregulationsthatgovernalcohol

licensepremisesinthestateofVirginia.VirginiaStatute 4.1-325 states that:

A. In addition to 4.1-324, no mixed beverage licensee nor any agent of


employee of such licensee shall:

11. Allow any obscene conduct, language, literature, pictures, performance or


materials on the licensed premises;

12. Allow any striptease act on the licensed premises;

13. Allow persons connected with the licensed business to appear nude or
partially nude;

8
See California v. la Rue, 409 U.S. 109 (1972)
9
See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996),

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Theeffectofthesechangesistoprohibitthesebusinessesthathavebeengrantedand

currentlyholdmixedbeveragelicensesfromcontinuingtopresenttotheirpatronsthe

eroticdanceperformance,orsufferthelossoftheirmixedbeveragelicenses.Such

restrictionsare,whetherimplicitlyorexplicitly,foundedontheideathatsuchregulations

willmitigatethesupposedsecondaryeffectsthatwouldoccurifbotheroticdancingand

liquorservicewereofferedunderthesameroof.

Social Disorganization, Alcohol, and Crime

Heightened criminal activity is often cited as a major secondary effect of adult

businesses. As such, the criminological theory has often been used to attempt to explain

potential relationships between sexually oriented businesses and crime in the surrounding

area. One theory that has been used in this regard is social disorganization.

Social disorganization theory posits that the level of crime in a particular

neighborhood is a function of the social disorganization in that neighborhood. A

community is considered disorganized if there is a lack of solidarity, social cohesion,

and integration among the residents of that community10.The lack of these characteristics

in a community leads to crime because informal social control is unable to be established

without them, and it is this informal social control that helps to deter crime in a

community11.

10
See Kubrin, C.E., Stucky, T.D., and Krohn, M.D. Researching Theories of Crime and Deviance, Oxford
University Press (2009)
11
See Kubrin, C.E., Stucky, T.D., and Krohn, M.D. Researching Theories of Crime and Deviance, Oxford
University Press (2009)

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Perhaps most important to social disorganizations application to the study of

negative secondary effects is its insistence that the characteristics of the community in

which the crime is occurring are important. Specifically, social disorganization theory

predicts that the ecological characteristics of a community can inhibit the development of

social control with that community12. Indeed, studies have shown that certain structural

aspects of the community, such as poverty and racial heterogeneity, are strongly related

to the amount of crime in that community13

The presence of bars has been characterized as an indirect indicator of social

disorganization14and even as crime generators15. Peterson et al.16 argue that socially

disorganized communities are less likely to attract and sustain conventional institutions

such as banks, libraries, and recreational centers that help control crime; whereas,

businesses such as bars are likely to be more prevalent in disorganized neighborhoods

that undermine crime control efforts17. The combination of weak institutions and social

disorganization attributes are likely to foster crime.

However, are sexually oriented nightclubs any more socially disorganizing than

non-adult alcohol serving establishments? The question is whether or not the combination

of erotic dancing and liquor interacts to cause more crime than merely serving liquor

12
See Kubrin, C.E., Stucky, T.D., and Krohn, M.D. Researching Theories of Crime and Deviance, Oxford
University Press (2009)
13
See Sampson, R. J. and Groves, B.W. Community Structure and Crime: Testing Social-Disorganization
Theory. American Journal of Sociology (1989)
14
See Peterson, R. D., Krivo, L. J., & Harris, M. A., Disadvantage and neighborhood violent crime: Do
local institutions matter? Journal of Research in Crime and Delinquency, (2000)
15
See Quimet, M. Aggregation bias in ecological research: How social disorganization and criminal
opportunities shape the spatial distribution of juvenile delinquency in Montreal. Canadian Journal of
Criminology, (2000).
16
See Peterson, R. D., Krivo, L. J., & Harris, M. A., Disadvantage and neighborhood violent crime: Do
local institutions matter? Journal of Research in Crime and Delinquency, (2000)
17
See Covington, J. African American communities and violent crime: The construction of race
differences. Sociological Focus, (1999)

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alone would. The present study is an empirical examination of the assumption that adult

businesses that serve alcohol foster unusual amounts of criminal activity on premise and

in the areas surrounding them.

Methods

The present study examined two Paper Moon Gentlemens Clubs (located at 6710

Midlothian Turnpike and 3300 Norfolk Street) in Richmond, Virginia that present erotic

dance performances and serve alcohol. The performers do not appear nude. On

December 17th, 2007 both Paper Moon locations received a mixed beverage license. Prior

to obtaining this license, the clubs served only beer and wine. A pre-post quasi-

experimental design was constructed in order to see whether or not the sale of liquor at

these adult establishments led to an increase in ambient crime risk at and around the

business.

In addition to this, control sites were established in order to compare whether

patterns of crime were similar at non-adult businesses. Guided by social disorganization

theory, controls were established on the basis of two criteria. First, only businesses such

as night clubs and bars were considered as controls. This is based on the assumption that

these sorts of businesses are similar in many ways to adult nightclubs, with the important

exception of the presence of adult entertainment. This provides an opportunity to

examine differences between alcohol serving businesses both with and without adult

entertainment. Second, control businesses were matched to the Paper Moon locations on

the basis of the shared demographic characteristics of the neighborhoods in which they

are situated. To do this, household information was obtained from the 2000 Census for

the Census Block in which each of businesses was located. Unsurprisingly, the adult

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businesses were located in areas with practically no households, with the 6710

Midlothian Turnpike location having one household in its block and the 3300 Norfolk

Street location having none. This is likely due to the zoning restrictions frequently put on

adult businesses that require them to be located a certain distance away from residential

areas. Therefore, control businesses were matched on basis of having few households

within their Census Block. While applicable controls sites with no households at all were

not able to be generated, Table 1 lists the businesses used as control sites and the

respective number of households in their Census Block. Overall, six control sites were

established, all of which were bars and nightclubs in the city of Richmond. Generally,

twenty households were considered a reasonable, if somewhat arbitrary, cutoff for the

area in which the business was situated to be similar enough to include as a control.

This study examined founded (a term used by the Richmond Police

Department) crime incident data utilizing the Incident Based Reporting (IBR) rules

obtained from the Richmond Police Department. IBR systems, which are defined at the

local and state levels, involve comprehensive data collection at the incident level on the

various aspects of reported criminal incidents. Depending upon the design of the

particular system, the information collected can include details about the incident

location, offense(s), offender(s), victim(s), property, and arrestee(s). These data span

March 2007 through September 2008. Case characteristics such as type of offense, date,

time season and location of the incident were included in the data set. Addresses

associated with violent sexual crimes were excluded from the data file because valid

addresses were not made available by the police.

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All crime events obtained by the Richmond Police Department nine months prior

(3/7/07-12/6/07) and nine months after (12/7/07-9/7/08) were geo-coded and mapped

using ArcGIS software. Any addresses provided by the police that were not valid or

usable were dropped from the analysis. Then, 500 foot buffers were drawn around the

Paper Moon locations and control businesses. Any crime incidents that occurred within

500 feet of the location were considered to be in the immediate area of that location.

The total number of crimes for each period was totaled.

Results

Results can be seen on Table 2. At the 6710 Midlothian Turnpike location, the

amount of crimes 500 feet around the Paper Moon location decreased by 18.5% in the

nine month period after attaining a mixed beverage license, dropping from 65 to 53

crimes. This result was even starker at the 3300 Norfolk St. location, with the already low

level of crime decreasing 61.6% in the nine month period after attaining a mixed

beverage license, from 13 to 5 crimes. However, the control sites showed similar

decreases in crime in the nine month period following Paper Moons mixed beverage

license, though only two of the six had steeper decreases than the Midlothian location

(Platinum 112 dropped by 29.8%, while Olocuita dropped by 27.5%) and none were as

steep as the crime decreases at the Norfolk location. Table 3 shows the total crime over

the entire 18 month period, while Table 4 shows the ratio of crime at the controls

compared to the Paper Moon locations over the complete 18 month period. At no point

was the crime surrounding the Paper Moon locations higher than any of the controls, and

there was anywhere from 1.27 to 16.72 times more crime in the 500 feet area surrounding

the controls than in the areas around the sexually oriented businesses.

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Discussion

The current study found little support for the theory that the presence of adult

entertainment with liquor service leads to increased criminal activity at and around the

location of the business. These findings are consistent with prior research investigating

the link between adult entertainment, liquor and crime. In a study done by Linz, Yao, &

Byrne18, hierarchical regression analysis in Toledo revealed that the presence or absence

of adult cabarets in a given neighborhood did nothing to explain the presence of crime in

that same neighborhood. Similarly, in Columbus, the addition of alcohol-serving adult

cabarets as a factor in the analysis resulted in zero explanatory power. The work in

Dayton revealed a negative correlation between adult cabarets and incidents of rape, such

that the presence of an alcohol-serving adult entertainment establishment is actually

indicative of fewer rather than more rape events. Finally, in Cleveland, it was found that

the addition of alcohol-serving adult cabarets as a factor in the analysis also added no

ability to explain crime incidents. Another study, conducted in Charlotte, North

Carolina19, found that, when matched with a control site based on demographic

characteristics, that erotic dance clubs had less crime in the 500 and 1000 foot areas

surrounding the business than did their controls.

18
See Linz, D., Yao, M., & Byrne, S., Testing Supreme Court assumptions in California v. la Rue: Is there
justification for prohibiting sexually explicit messages in establishments that sell liquor? Communication
Law Review. (2007)
19
See Linz, D., Land, K., Williams, J. Ezell, M. & Paul, B.. An examination of the assumption that adult
businesses are associated with crime in surrounding areas: A secondary effects study in Charlotte, North
Carolina. Law and Society Review (2004)

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The present study builds upon Linz et al.s20 work by directly examining the

changes in crime at the location of two adult businesses both before and after they began

to offer liquor drinks. In the nine month period following acquiring a mixed beverage

license, both Paper Moon locations showed notable decreases in crime. In addition, when

compared with similar control businesses in similar neighborhoods, instances of crime

around the adult businesses were lower. It must be kept in mind that such decreases in

crime are likely due to a citywide pattern of crime reduction, as crime around control

sites decreased as well. Nonetheless, at no point in time was crime at and around the adult

businesses higher than any of the control locations; in fact, crime was more prevalent in

the area surrounding the control locations than at either of the Paper Moon Gentlemens

Clubs.

That being said, the current study has several limitations. First, while it was

attempted to match control sites to the adult business as closely as possible, such

matching may have imperfections. The Census data used to match the control sites was

from the last Census in 2000. Therefore, it is difficult to say how much the demographic

and housing characteristics of these neighborhoods have changed since then. Also, the

control sites generally had slightly more households in their Census Block than either of

the Paper Moon locations. While the disparity in number of households was kept to a

minimum, it is impossible to say what impact the presence of these households had on

local crime. Second, because the Paper Moon locations received their mixed beverage

licenses fairly recent (12/7/07) to the date the data was received from the Richmond

Police department (late September of 2008), only the nine months periods before and

20
See Linz, D., Yao, M., & Byrne, S., Testing Supreme Court assumptions in California v. la Rue: Is there
justification for prohibiting sexually explicit messages in establishments that sell liquor? Communication
Law Review. (2007)

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after they acquired their mixed beverage license were able to be examined. Ideally, at

least a full year for each time period would have been useful to assure that the results

werent merely an erratic pattern of criminal activity during either of those time periods.

Third, because of various entry errors by the police and the lack of available addresses for

sexually violent crimes, it is hard to know the impact of the data that was not able to be

included in the analysis. Unfortunately, this is practically unavoidable when dealing with

crime data, as human error will always be involved with reported incidents from the

police.

However, what explanations might account for the absence of effects found in this

study and others? In discussing the implications of their study, Linz et al21 discuss several

reasons why crime at adult nightclubs may be lower than those of at non-adult liquor

serving establishments. They point out that adult cabarets have been subjected to over

two decades of municipal zoning restrictions across the country, and they usually must

comply with many other regulations as well. This has led these clubs to implement better

lighting in their parking lots and better security surveillance than is standard for non-

nightclub business establishments, which reduce the opportunities to commit serious

crimes. In addition, they note that adult cabarets often extensively manage the parking

lots adjoining the exotic dance nightclubs, in many cases including guards in the parking

lots, valet parking, and other control mechanisms, which may be especially effective in

reducing the possibility of violent disputes in the surrounding area.

What does the lack of empirical evidence of a relationship between sexually

oriented businesses in the community and secondary crime effects mean regarding the

21
See Linz, D., Land, K., Williams, J. Ezell, M. & Paul, B.. An examination of the assumption that adult
businesses are associated with crime in surrounding areas: A secondary effects study in Charlotte, North
Carolina. Law and Society Review (2004)

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Virginia statutes underlying rationale for regulating sexually oriented businesses wishing

to serve liquor? In Justice Souters dissent in Alameda, he wrote:

The risk lies in the fact that when a law applies selectively only to speech
of particular content, the more precisely the content is identified, the greater is the
opportunity for government censorship. Adult speech refers not merely to
sexually explicit content, but to speech reflecting a favorable view of being
explicit about sex and a favorable view of the practices it depicts; a restriction on
adult content is thus also a restriction turning on a particular viewpoint, of which
the government may disapprove.22.

Justice Souter went on to say that sound empirical investigations of presumed

adverse secondary effects are helpful in guarding against unconstitutional restrictions of

freedom of sexual speech. Lacking empirical proof of its own, the state of Virginia may

be engaging in disapproval of adult speech rather than attempting to regulate sex

communication out of concern for adverse secondary effects.

In his concurrence in Alameda, Justice Kennedy wrote: A city may not assert

that it will reduce secondary effects by reducing speech in the same proportion.23 By

restricting erotic dancing from being performed in locations that serve mixed beverages,

the state of Virginia may be doing just what Justice Kennedy warned against. Given that

these nightclubs are the sole venues in which people can go to see erotic dancing, placing

restrictions upon them in such a way that it makes it difficult for them to do business

could lead to a reduction in availability of such speech in a community.

In conclusion, the state of Virginias statute changes, while appearing content

neutral, may be a form of viewpoint discrimination against sexually oriented businesses.

Although the intent of such statutes may be to offset supposed secondary effects caused

22
See Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)

23
See Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)

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by combining liquor service and adult entertainment, this rationale is significantly

weakened in the absence of any substantial evidence for said effects. Given that erotic

dancing has been deemed to be a protected form of expression24, any regulations that

prevent such expression should be carefully examined such that protected speech is not

suppressed and the availability of that speech is not significantly reduced.

24
See Schad v. Borough of Mount Ephraim 452 U.S. 61 (1981)

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Appendix

Table 1: Number of households in census block for control locations

Business Total Households


1814 E Main St
(Rocks Nightclub) 7
140 Virginia St
(Toads Place) 16
1902 Decatur St
(Club Destiny) 5
112 N 5th St
(Platinum 112) 20
3001 Jefferson
Davis St (Olocuita 12
Nightclub)
4644 Jefferson
Davis St (Sabor 15
Latino Nightclub)

Table 2: Total crime within 500 feet of locations in the nine month periods before and after Paper
Moon Gentlemens Clubs received mixed beverage licenses

Business 3/7/07-12/6/07 12/7/07-9/7/08 Crime Change


(Pre Mixed Bev.) (Post Mixed Bev.)
6710 Midlothian
Tpke (Paper Moon) 65 53 -18.5%
3300 Norfolk St
(Paper Moon) 13 5 -61.6%
1814 E Main St
(Rocks Nightclub) 160 141 -11.9%
140 Virginia St
(Toads Place) 84 71 -15.5%
1902 Decatur St
(Club Destiny) 93 81 -12.9%
112 N 5th St
(Platinum 112) 104 73 -29.8%
3001 Jefferson Davis
St (Olocuita 131 95 -27.5%
Nightclub)
4644 Jefferson Davis
St (Sabor Latino 80 70 -12.5%
Nightclub)

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Table 3: Total crime within 500 feet of locations between 3/7/07-9/7/08

Business Total Crime


6710 Midlothian Tpke
(Paper Moon) 118
3300 Norfolk St
(Paper Moon) 18
1814 E Main St
(Rocks Nightclub) 301
140 Virginia St
(Toads Place) 155
1902 Decatur St
(Club Destiny) 174
112 N 5th St
(Platinum 112) 177
3001 Jefferson Davis
St (Olocuita 226
Nightclub)
4644 Jefferson Davis
St (Sabor Latino 150
Nightclub)

Table 4: Ratios of Crime within 500 feet of Controls to Crime within 500 of Paper Moon
locations between 3/7/07-9/7/08

Business Ratio of Crime at Ratio of Crime at


Control Compared to Control Compared to
6710 Midlothian 3300 Norfolk
1814 E Main St
(Rocks Nightclub) 2.55 16.72
140 Virginia St
(Toads Place) 1.31 8.61
1902 Decatur St
(Club Destiny) 1.47 9.67
112 N 5th St
(Platinum 112) 1.5 9.83
3001 Jefferson Davis
St (Olocuita 1.91 12.56
Nightclub)
4644 Jefferson Davis
St (Sabor Latino 1.27 8.33
Nightclub)

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EXHIBIT 6

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Secondary Effects 1

Running Head: SECONDARY EFFECTS

Testing Assumptions Made by the Supreme Court Concerning the


Negative Secondary Effects of Adult Businesses: A Quasi-Experimental Approach

By

Bryant Paul
Ph.D. Candidate
University of California at Santa Barbara
Department of Communication
Santa Barbara, CA 93106
long_ time@msn.com
Phone: (805) 983-3887

and

Daniel Linz
Professor of Law and Society, and Communication
University of California at Santa Barbara
Department of Communication
Santa Barbara, CA 93106
Linz@comm.ucsb.edu

2002 International Communication Association:


Top Four Refereed Papers in Communication, Law and Policy.

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Secondary Effects 2

Testing Assumptions Made by the Supreme Court Concerning the


Negative Secondary Effects of Adult Businesses: A Quasi-Experimental Approach

Abstract

In order to test the foundational assumptions made by the Supreme Comt that communities may
regulate adult businesses because they are associated with negative secondary effects, an empirical
study of criminal activity surrounding exotic dance nightclubs' in a Midwestern community
contemplating legislation regulating exotic dance clubs (Fort Wayne, Indiana) was undertaken. Unlike
previous studies, conducted in other municipalities, specific attention was given to developing an
empirical approach that fulfilled the requirements set out by the Supreme Court for the proper conduct
of a social scientific inquiry. A 1000 feet circumference suffounding each of eight exotic dance
nightclubs in Fort Wayne was established. Comparison areas were selected in the city of Fort Wayne
and matched to the club areas on the basis of demographic features and commercial property
composition. The number of calls to the police from 1997-2000 in the areas smTounding the exotic
dance nightclubs was compared to the number of calls found in the matched comparison areas. Our
analysis showed little difference, overall, between the total number of calls to the police reported in the
areas containing the exotic dance nightclubs and the total number of offenses reported in the
comparison areas.

1
The Ft. Wayne clubs studied in this paper do not operate in a form of what is traditionally considered to be an "adult"
entertainment business. The entertainers at these nightclubs perform wearing "pasties" and "g-strings" consistent with
Indiana statute and the United States Supreme Court' s decision in Barnes v. Glen Theatre, Inc., 501 U.S . 560 (1991). For
this reason, while we refer to previous reports and studies as attempting to analyze the relationship of"adverse secondary
effects" and "adult" businesses, we generally refer to the studied facilities here either as "nightclubs" or "exotic dance"
establishments.

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Secondary Effects 3

Testing Assumptions Made by the Supreme Court Concerning the


Negative Secondary Effects of Adult Businesses: A Quasi-Experimental Approach

THE SUPREME COURT AND THE ASSUMPTION


OF NEGATIVE SECONDARY EFFECTS OF
ADULT BUSINESSES

Since 1976, the United States Supreme Court has decided a series of cases focusing on whether

the free speech clause of the First Amendment allows cities and states to enact legislation controlling

the location of "adult" businesses.2 "Zoning" regulations (e.g., laws or ordinances that prevent a sex-

related business from operating within a certain number of feet from residences, schools and houses of

worship or a given distance from one another) have been predicated on the notion that cities and other

municipalities have a substantial interest in combating so-called "negative secondary effects" on the

neighborhoods surrounding exotic dance businesses. These secondary effects are generally said to

include alleged increases in crime, decreases in property values, and other indicators of neighborhood

deterioration in the area surrounding the exotic dance business. Typically, communities have either

conducted their own investigations of potential secondary effects or have relied on studies conducted

by other cities or localities.

In more recent years, the Court has considered the constitutionality of anti-nudity ordinances

passed by municipalities or states that have relied on negative secondary effects to justify the

legislation. 3 In a fractured decision, the Court in Barnes v. Glens Theatre Inc. held that the State of

Indiana could regulate public nudity. 4 Justice Souter in a concurring opinion ruled that the government

2
See e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); City of Renton v Playtime Theatres Inc., 475 U.S. 41
(1986).
3
See e.g., Barnes v. Glens Theatre Inc., 501 U.S. 560 (1991); City ofErie v. Pap'sA.M , 529 U.S. 277 (2000).
4
Barnes v. Glens Theatre Inc. , 501 U.S. 560 (1991) (hereinafter Barnes] .

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Secondary Effects 4

could undertake such regulation on the basis of the presumed negative secondary effects on the

surrounding community. 5

Most recently, in City ofErie v. Pap's A.M the Court again held that municipalities have the

right to pass anti-nudity ordinances. 6 And, again, the Court was fractured. However, three Justices

agreed with Justice O'Connor' s opinion that in conformity with Justice Souter's concurrence in Barnes,

combating negative secondary effects associated with adult businesses was a legitimate basis for the

imposition of anti-nudity regulations. Most notable for the current study, was Justice Souter's partial

concun-ence and partial dissent in the Pap's decision. He significantly revised the position he took

regarding secondary effects in Barnes. In Pap's, Justice Souter admitted that the evidence of a

relationship between adult businesses and negative secondary effects is at best inconclusive.7 He called

into question the reliability of past studies that purported to demonstrate these effects and suggested

that municipalities wishing to ban nudity must show evidence of a relationship between adult

businesses and negative effects. 8

In addition, writing on behalf of four of the other Justices in Pap 's, Justice O' Connor noted that

the nightclub at issue there "has had ample opportunity to contest the council's findings about

secondary effects -- before the council itself, throughout the state proceedings, and before this [the

Supreme] Court. Yet, to this day, [the club] has never challenged the city council' s findings or cast any

specific doubt on the validity of those findings." The four-member plurality of the Court therefore

rejected the club 's challenge to the assertion that the facility engendered adverse secondary effects,

because the business itself had not submitted any evidence to refute such an asserted connection.

5
As will be discussed in depth below, restrictions on erotic dance have typically included requiring dancers to wear at least
pasties and a G-string when performing.
6
City ofErie v. Pap's A.M , 529 U.S. 277 (2000) [hereinafter Pap's].
1
Id. at 6-7 (Souter, D. concurring in part dissenting in part).
8
Id. at 5 n.3 .

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Secondary Effects 5

The purpose of the present study is to develop the type of evidence demanded by Justice Souter

and noted to be relevant by Justice O' Connor and the other Justices, in order to determine if a

relationship exists between the exotic dance clubs in Fort Wayne, Indiana and negative secondary

effects. Further, this evidence is obtained in accordance with established methodological procedures so

as to insure the highest levels of scientific reliability.

This study was undertaken in response to an ordinance being considered by the Fort Wayne

City Council that would expand the city's law on how close adult businesses (including adult cabarets)

can be to schools or churches. The distance would increase from 500 feet to 750 feet. The city also

considered early closing times for adult businesses and a ban on so called "lap dancing" at exotic dance

clubs. The city justified the expansion of regulations on the existence of negative effects associated

with these businesses that were reported to have occuned in other municipalities.

THE SCIENTIFIC STUDY OF NEGATIVE SECONDARY EFFECTS

Unfortunately, when most municipalities have conducted studies of crime and adult businesses

in the past there has not been a set of methodological criteria or minimum scientific standards to which

the cities were required to adhere. Without such standards we have argued most cities that have passed

legislation are relying on flawed databases.9

The basic requirements for the acceptance of scientific evidence for legal decision-making were

prescribed by the Supreme Court in the 1993 case of Daubert v. Merrell Dow. 10 In Daubert, Justice

Blackmun, writing for the Court, held that there are certain limits on the admissibility of scientific

evidence offered by "expert witnesses" in federal courts.

9
See, Bryant Paul, Daniel G. Linz, and Bradley J. Shafer. Government regulation of adult businesses through zoning and
anti-nudity ordinances: Debunking the legal myth of negative secondary effects. Comm. L. & Pol 'y 355-392 (2001 ).
10
Daubert v. M errell Dow, 509 U.S. 579 (1 993) [hereinafter Daubert].

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Secondary Effects 6

In an attempt to prevent the proliferation in courtrooms of what Peter Huber has called "junk

science," the Supreme Court in Daubert opined that scientific knowledge must be grounded "in the

methods and procedures of science," and must be based on more than "subjective belief or unsupported

speculation." Thus, the Court said, "the requirement that an expert's testimony pertain to 'scientific

knowledge' establishes a standard of evidentiary reliability. 11 The Court observed that "[i]n a case

involving scientific evidence, evidentiary reliability will be based upon scientific validity."

Offering "some general observations" as to how this connection can be made, the Court

provided a list of factors that federal judges could consider in ruling on a proffer of expert scientific

testimony: 1.) The "key question" is whether the theory or technique under scrutiny is testable,

borrowing Karl Popper's notion of falsifiability. 2.) Although publication was not an absolute

essential, the Court noted that peer review and publication increased "the likelihood that substantive

flaws in methodology will be detected." 3.) Error rate. 4.) Adherence to professional standards in

using the technique in question. 5.) Finally, though not the sole or even the primary test, general

acceptance could "have a bearing on the inquiry." 12

While it may not be necessary to hold a single study of adverse secondary effects to each of

these considerations when weighing the validity of evidence substantiating the existence of such

effects, at least two factors, error rate and adherence to professional standards are indispensable.

Before discussing those two elements, we will briefly address the other factors as well.

Criteria for Insuring a Scientifically Valid Study of Secondaiy Effects

We presume that it is at least a testable position that secondary effects may exist, and may be

connected to certain businesses, or else a study would not be undertaken in the first place. More to the

11
Id. at 590 n. 9.

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Secondary Effects 7

point, however, in Pap's, both the opinion by Justice Souter and that authored by Justice O'Connor on

behalf of four Justices (therefore constituting a combined majority of the Court) presume that such a

connection or nexus is testable. In fact, Justice Souter states specifically that "[t]he proposition that the

presence of nude dancing establishments increases the incidence of prostitution and violence is

amenable to empirical treatment .... " 13 In addition, the procedures and methodologies that we use

here are no different than our previous review and critical analysis of the existing "secondary effects"

literature; which itself has been both peer-reviewed and published. See, n.9, supra. Finally, the

analysis that we undertake here -- comparing specified locations with regard to calls for service -- is

neither novel, unique, nor groundbreaking. It is a form of research that receives general acceptance in

the scientific community. It is only the nature of the businesses that makes this study different.

The third and fourth factors, the calculation of an error rate and adherence to professional

standards in using techniques or procedures are the most critical factors that need to be applied to any

secondary effects study in order to ensure "evidentiary reliability." Without this reliability, there is no

basis to determine whether there is a substantial or important governmental interest involved or

whether a specific piece of legislation is "necessary" in order to further that interest, or whether it is

"reasonable" for a municipality to rely upon such a study as a basis for enacting legislation. 14

12
Id. at 593-594.
13
Pap 's, 120 S.Ct. 1382, 1404 n.3 (Souter, J. concurring in part and dissenting in part).
14
These are the factors that the United States Supreme Court has established in order to analyze the constitutionality of
legislation under what is known as "intermediate" scrutiny. In United States v. O 'Brien, 391 U.S. 367 (1968), the Supreme
Court established a four-part test for such scrutiny, which requires a court to analyze, for example, "whether the regulation
furthers an important or substantial governmental interest," and "whether the incidental restriction on alleged First
Amendment freedom is no greater than is essential to the furtherance of that interest." Id. at 377. In addition, when
determining whether a regulation furthers an important or substantial governmental interest in the context of a "secondary
effects" analysis, a municipality may rely upon previous studies "so long as whatever evidence the [government] relies upon
is reasonably believed to be relevant to the problem that [it] addresses." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-
52 (1986) (clarification added).

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Secondary Effects 8

In a scientific study, the e1rnr rate refers to the probability of accepting a result as true, when in

fact it is false. 15 It is an indication of the reliability of a finding. An error rate is determined by first

calculating an estimation of a population characteristic (a statistic) that summarizes the data that has

been collected, and then asking how likely it is that that statistical value would be obtained by chance

alone. The error rate is the degree of chance a scientist will allow. In the social sciences it is

conventional to set the error rate at five percent or less (i.e., we will tolerate an error rate that 5 times

16
out of 100, the results may be obtained by chance and that we may be wrong).

Unless certain assumptions are met, statistical tests cannot be applied to the data and an error

rate cannot be calculated. Most important of these assumptions in regard to, for example, survey

research, is that the units of analysis (e.g., survey respondents) are randomly selected from the

population, or in regard to an experiment, that the units of analysis (e.g., subjects) are randomly

assigned to experimental (or study) and control (or comparison) groups. 17 The results of properly

conducted experiments and surveys are always couched in terms of an error rate.

However, in many cases, especially in field research, it is not possible to randomly assign units

of analysis to an experimental group and a control group. 18 This is universally true of "secondary

effects" studies. 19 It is not feasible to randomly assign exotic dance nightclubs to some locations in the

15
See, Robert R. Pagano, Understanding Statistics in the Behavioral Sciences. 215-216, 384 (5 th ed. 1998). See also
Geoffrey Keppel, Design and Analysis: A Researcher's Handbook. 164-165 (3 rd ed. 1991); David C. Howell, Statistical
Methods for Psychology. 349-350 (4 th ed. 1997). See generally, Jacob Cohen & Patricia Cohen, Applied Multiple
Regression/Correlation Analysis for the Behavioral Sciences. 166-176 (2 nd ed. 1983) (discussing causes of type I and type
II error and ways to correct for each).
16
Jacob Cohen & Patricia Cohen, Applied Multiple Regression/Correlation Analysis for the Behavioral Sciences. at 21 (2 nd
ed. 1983).
17
Earl Babbie, The Practice of Social Research. 202-210 (8 th ed. 1998). See also, Royce A. Singleton, Jr., Bruce C. Straits,
& Margaret Miller Straits, Approaches to Social Research. 136-151 (2 nd ed. 1993).
18
Donald T Campbell & Julian C. Stanley, Experimental and Quasi-experimental Designs for Research. 34 (1963).
19
Obviously, it is not possible to randomly assign certain businesses to some neighborhoods and hold other neighborhoods
as controls.

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Secondary Effects 9

city and randomly assign other areas as control areas and then take account of whether crime increases

or decreases around the clubs relative to the control areas.

When this is the case, adherence to a set of professional standards that have been devised by

scientists in a particular area of inquiry to insure methodological integrity and thus the validity of a

study is all the more necessary. These standards vary somewhat depending on the area of inquiry or

social science discipline, but they are generally known as professional standards for conducting "quasi-

experiments. " 20

Secondary Crime Effects

The majority of the secondary effects studies reviewed generally assume the following form.

Researchers assemble crime statistics and calculate average property values and other general measures

of neighborhood quality or deterioration (e.g. residential turnover rate, local tax revenue, etc.) in the

geographical area surrounding exotic dance entertainment businesses. In a few studies these measures

are compared to other areas that do not contain an adult business. Another popular data gathering

methodology is to perform a survey in which residents or business owners are asked for their opinions

of the likely impact of adult entertainment businesses on their neighborhoods. The former type of

study may be relevant to determining whether certain forms of establishments cause "adverse

secondary effects" if conducted in accordance with sound scientific principles, while the latter arguably

does not provide any empirical insight to this issue. 21

In the present study, the impact of exotic dance clubs on the occurrence of crime is specifically

considered. The discussion of acceptable scientific procedures is limited to those necessary to insure

the proper implementation of such a crime study.

20
See, Campbell & Stanley, supra note 68 at 34-71.

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Secondary Effects 10

Three criteria are crucial in insuring that a scientifically valid study of secondary crime effects

has been conducted. First, in order to insure accurate and fair comparisons, a control area must be

selected that is truly "equivalent" to the area containing the exotic dance entertainment business( es). 22

Since most analyses of secondary effects attempt to uncover increases in crime, professional standards

dictate that the control (non-exotic dance) site must be comparable (matched) with the study (exotic

dance) site on variables related to crime. Of particular importance are that the study and control areas

are matched for ethnicity and socioeconomic status of individuals in both areas. A concerted effort

should also be made to include only comparison areas with similar real estate market characteristics

such as proportion of commercial and industrial space in either area. The study and control areas

should also approximately equal in total population. Finally, because of the effect of businesses that

serve alcoholic beverages on crime and neighborhood deterioration, the study and control area should

be matched on the presence of alcohol serving establishments. 23 The reasons for these concerns are

discussed later in this paper.

In summary, studies which employ a test group or area and a matched control group or area, are

commonly referred to as "quasi-experimental" designs and the most important consideration in such a

design is whether the comparison group or control group are well matched.

Second, a sufficient period of elapsed time, following the establishment of an exotic dance

entertainment business, is necessary when compiling crime data in order to ensure that the study is not

merely detecting an erratic pattern of social activity. Generally, the longer the time period for

21
See, n.9, supra.
22
See, Campbell and Stanley, supra note 68. See also, Babbie, supra note 67 at 213-214.
23
See e.g., City of St. Paul, Minnesota, Neighborhood deterioration and the location of adult entertainment establishments
in St. Paul. (1978).

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Secondary Effects 11

observation of the events under consideration, the more stable (and more valid) the estimates of the

event's effects tend to be. 24

Third, the crime rate must be measured according to the same valid source for all areas

considered. 25 Studies of secondary effects typically focus on two general types of crime in relation to

exotic dance entertainment businesses. These two types of crime are "general criminal activity"

(including, but not limited to, robbery, theft, assault, disorderly conduct, and breaking and entering)

and "crimes of a sexual nature" (including, but not limited to, rape, prostitution, child molestation, and

indecent public exposure). It is especially important that the measurement of these crimes is based on

the same information source for both sites and throughout the entire study period. For example, if the

study area measures crime by the number and type of calls made to the police department, the

comparison area must also rely on such a measure when the two areas are compared.

In addition, the crime information source must be factually valid and reliable such

as a daily log kept by police, or a compilation of the number of calls for service made in a municipality

recorded by street address or similar geographical locators.

Any change in police surveillance techniques regarding exotic dance entertainment businesses

in a particular community must also be noted. Obviously, increased surveillance of an area simply

because an exotic dance club is located there will have an impact on the amount of crime detected by

the police. If increased police surveillance and the presence of an exotic dance club in a particular area

are confounded in this way, it is impossible to tell whether crime has increased due to the presence of

the club or simply because of the increased police activity.

24
Royce A. Singleton, Bruce C. Straights, & Margaret M . Straights, Approaches to Social Research. at 213-241 (1993).
25
See, Campbell & Stanley, supra note 68 at 5, 9.

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Secondary Effects 12

Finally, an error rate must be calculated. The error rate is the degree of chance a scientist will

allow. In the social sciences it is conventional to set the error rate at five percent or less (i.e., we will

tolerate an error rate of 5 times out of 100 the results may be obtained by chance).

The Study of Negative Secondary Crime Effects in Fort Wayne, Indiana

The following criteria were applied to insure that a scientifically valid quasi-experimental study

of secondary effects would be conducted in the city of Fort Wayne. First, in order to insure accurate

and fair comparisons, comparison areas were selected that were equivalent to the areas surrounding the

exotic dance entertainment businesses. Second, a sufficient period of time (over three years) was

employed when compiling the crime data used in this investigation in order to ensure that the study

was not merely detecting a temporary and erratic pattern of criminal activity. Third, the crime rate was

measured according to the same valid source for all areas of the city considered and the c1ime

information source was a factually valid compilation of the calls for service supplied by the City of

Fort Wayne. Statistical analysis is undertaken where appropriate and an error rate is calculated to

determine if any differences found between club and comparison areas are due to chance or true

differences.

METHODS

A Quasi-Experimental Approach

It was not possible to randomly assign units of analysis to an experimental group and a control

group to perform a "true" experiment to test the hypothesis that exotic dance nightclubs in Fort Wayne

engender negative effects. However, as noted above, there is a set of professional standards that have

been devised by social scientists to insure "methodological rigor" (procedural validity) in this situation.

These standards are generally known as professional standards for conducting "quasi-experiments."

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Secondary Effects 13

In order to insure accurate and fair comparisons, a control area must be selected that is truly

"equivalent" to the area containing the adult entertainment business(es). Since in this study an attempt

was made to uncover whether crime had increased in the areas surrounding the exotic dance nightclubs,

professional standards dictate that the control (non-exotic dance) site must be comparable (matched)

with the study (exotic dance) site on demographic and other variables that are generally regarded as

being related to crime rates.

Matching club and comparison areas on demographic variables related to crime

In order to insure confidence in our results, it is particular importance that the study and

comparison areas be matched for population ethnicity and age, two factors that are known to be related

to crime rates. The socioeconomic status of individuals in both areas must also be considered and the

study and comparison areas must be matched on these variables as well. For example, Cohen, Gorr,

and Olligschlaeger26 have found that crime hotspots tended to be in areas with higher levels of poverty.

The number of female-headed households and total divorced residents in each area should also

be taken into account. This is because Cohen, Gorr, and Olligschlaeger found that crime hotspots

tended to be associated with low family cohesion.27

The study and control areas should also be approximately equal in total population both in order

to control for the effects of population density on crime and to correct for rate of crime.

A concerted effort should also be made to include only comparison areas with similar real

estate market characteristics, such as proportion of commercial and industrial space in either area.

Higher levels of crime tend to plague places with certain types of facilities and not others. In some

26
Jacqueline Cohen, Wilpen Gorr, and Andreas Olligschklaeger. Modelling street-level illicit drug markets. Working
fa per 93-64, The H. John Heinz ill School of Pub. Pol. and Mngmt., Carnegie Mellon University, Pittsburgh (1993) .
7
See, Id.

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Secondary Effects 14

cases, for example, crimes seem to be elevated by a target rich environment-for example, thefts of 24-

hour convenience stores, auto thefts from large parking lots, or robberies from shoppers in heavily

frequented commercial areas. 28 (Engstad 1975; Duffala 1976).

Finally, because of the effect of businesses that serve alcoholic beverages on crime and

neighborhood deterioration, the study and control area should be matched on the presence of alcohol

serving establishments such as bars and taverns. Certain activities such as alcohol consumption seem

29
to contribute to levels of violence

All of these various attempts to "match" the subject and control areas are critical in order to

insure that the results we obtain can be ascribed to the presence or absence of (in this case) an exotic

dance nightclub, and not to some other irrelevant factor.

Establishing Matched Comparison Locations

In order to insure that the research reported here utilized appropriately "matched" exotic dance

club (study) and non-club (comparison) areas, a crime mapping approach was utilized. A 1000 feet

area was identified as surrounding each of eight exotic dance nightclubs in Fort Wayne, Indiana.

Comparison areas, each 1000 feet in radius were selected by using a set of neighborhood

demographic features that matched with the exotic dance business areas on the basis of demographic

features known to be related to crime, and by further matching areas on the basis of commercial

property composition.

28
P.A. Engstad. Environmental opportunities and the ecology of crime. Crime in Canadian Society. (1975); D. C.
Duffala. Convenience stores, armed robber, and physical environmental features. American Behavioral Scientist, 20: 227-
246. (1976).
29
Dennis W. Roncek and M. A. Pravatiner. Additional evidence that taverns enhance nearby crime. Sociology and Social
Research, 70; 185-188; Richard Block and Carolyn Block. Space, place, and crime: Hot-spot areas and hot places of
liquor-related crime. In Crime and Place, edited by J.E. Eck and D. Weisburd. Vol. 4 of Crime prevention studies.
Monsey, New York: Criminal Justice Press.

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Secondary Effects 15

The following demographic variables were chosen for matching control and exotic dance club

sites because of their established empirical relationship with criminal activity: Number of female

headed households, total population (1997), total number of white residents, total number of black

residents, residents aged 18-29, total divorced residents and median household income. Each of these

variables was identified at the U.S. Census block level.

The geographic information system computer program, Maptitude, was used to locate the

census block within which each club was located. The values on each of the demographic variables

were identified for the census block within whlch the exotic dance nightclub was located. A

comparable block, matched for values on the crime variables, was then selected via Maptitude. When

study or comparison areas fell across more than one census block, a mean for all of the blocks involved

was calculated to determine the value of each demographic variable. All control areas were selected

before the crime data was obtained and thus before any analysis of the crime data was undertaken.

Table 1 displays a comparison of the values for the demographic characteristics measured at

the census block level for the club locations and the control locations to which they were matched. The

average level of each variable (summed across locations) for the club areas and the control areas are

presented in Table 2. Looking at the table reveals, for example, that the exotic dance nightclub area

census blocks had an average of 88 female-headed households, while the comparison or control area

blocks had approximately 73 similar households. Or, to take another example from the Table, the 1997

median household income level for the comparison area was approximately $34,270, while the club

area income level was approximately $33,505.

A statistical analysis was undertaken to insure that the eight club and eight comparison

locations did not differ significantly from each other in terms of the demographic variables chosen for

matching. A !-test for equality of means for independent samples was undertaken for the comparison

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Secondary Effects 16

and club areas for each demographic variable. None of these tests reached statistical significance (p <

.05) (see Table 3) meaning that, on average, the comparison and exotic dance club areas did not

statistically differ from one another, and were therefore well matched. This helps ensure that any

differences that we might later uncover in the number of calls for service are the result of the presence

or absence of these exotic dance clubs, and not the result of some other factor.

Figure 1 presents a map of the central Fort Wayne area and shows the location of the exotic

dance clubs in the Fort Wayne area; including the 1000 feet radius around each club location. Also

displayed in Figure 1 are the areas located by Maptitude that are matched to the club areas by the

demographic variables related to crime.

Measuring Crime

Calls for service for crimes that were presumed to be related to exotic dance establishments in

several of the more methodologically sound studies conducted by other municipalities were included in

our examination. These included: 1) Sex crimes (rape, molestation, indecent exposure, sexual battery),

2) aggression related non-sexual offenses (shootings, fights, non-sexual battery, disturbances), and 3)

thefts, burglaries and robberies. Over 39,000 calls for service to the police for a three-year-ten-month

period from January 1997 to October, 2000, were obtained from the City of Fort Wayne crime records

division and examined. Only those incidents for which calls for service were made and later not based

on unfounded charges were included in the study. A listing of all crimes included in the study and their

location are available by computer disk from the authors.

RESULTS

Table 4 displays the calls for service undertaken by the Fort Wayne police within a 1000 feet

radius of the eight exotic dance nightclubs and the matched comparison areas. For two of the overall

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Secondary Effects 17

arrest categories, a) sex crimes, and c) thefts, burglaries and robberies, the number of calls for service

were remarkably similar. The additional arrest category, aggression related non-sexual offenses,

displayed a markedly different pattern.

Inspection of the table reveals that for crimes presumed to be especially likely to be related to

exotic dance ente1tainment establishments, such as rape, molestation, indecent exposure and sexual

battery, the number of crimes was nearly identical in the areas surrounding the exotic dance nightclubs

and the comparison areas (a total of 42 in the club areas and 43 in the matched comparison areas).

In order to form a visual representation of the pattern of calls for service for sex-related crimes

in Fort Wayne, generally, and the location of sex crime calls for service within the 1000 feet radius of

the exotic dance clubs calls for service and in the matched comparison areas, the geographical location

of the sex related calls for service were plotted on a map of the city. These locations are presented in

Figure 2. A closer inspection of the street addresses for calls for service in the vicinity of an example

club and its comparison area can be found in Figure 3.

For the aggression related non-sexual offenses, categories including shootings, fights,

nonsexual batte1y and disturbances, the results indicated greater frequencies of arrest in the comparison

areas compared to the club areas (a total of 111 in the club areas and 245 in the matched comparison

areas). However, calls for service for thefts, burglaries and robberies were more comparable to one

another in the club and comparison areas (a total 467 for the club areas and 424 in the matched

comparison areas).

Overall, summing across all of the crime categories there were a total of 620 calls for service in

the exotic dance club areas and 712 calls for service in the comparison areas.

Table 5 displays the citywide total for calls for service within each crime category for the three-

year period. It is useful to calculate the number of calls for service that are attributed to the exotic

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Secondary Effects 18

dance club areas as a percentage or proportion of the total number of calls for service for the city of

Fort Wayne as a whole. Expressed this way, it may be noted that the areas surrounding the exotic

dance clubs accounted for only 42 of a total of 1732 sex crimes in Fort Wayne, or approximately 2

percent of the total. The areas around the exotic dance clubs were locations for approximately four-

percent of the total aggression related nonsexual offenses, while the comparison areas were the

locations for twice as many calls for service over eight percent of the total calls for service in this crime

category. Finally, the areas around the exotic dance clubs accounted for approximately three-percent of

the total number of thefts burglaries and robberies in the city. This percentage was a similar proportion

of the total as that accounted for by the comparison areas.

SUMMARY AND IMPLICATIONS

An empirical study of criminal activity surrounding exotic dance nightclubs in Fort Wayne,

Indiana, was undertaken. The present investigation, unlike most others of adverse secondaiy effects,

adhered to the basic requirements set out by the Supreme Court for the proper conduct of a social

scientific inquiry. A quasi-experimental approach was undertaken in which areas surrounding the

exotic dance clubs and comparison (control) areas were examined. In order to insure accurate, fair and

useful comparisons, control areas were selected that were equivalent to the areas surrounding the exotic

dance entertainment businesses. A sufficient period of elapsed time was employed when considering

arrest data to ensure that the study did not merely detect a temporaiy or erratic pattern of crime activity.

To this end, information on calls for service for a three-year period was obtained from the City of Fo1t

Wayne.

A 1000 feet circumference smrounding each of eight exotic dance nightclubs in Fort Wayne

was examined for the number of police calls for service occurring over a three-year period.

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Secondary Effects 19

Comparison areas were selected in the Fort Wayne area and matched to the club areas on the basis of

demographic features known to be related to crime.

The number of calls for service in the areas surrounding the exotic dance nightclubs was then

compared to the number of calls for service found in the matched comparison areas. The crimes in our

examination included: 1) Sex crimes (rape, molestation, indecent exposure, sexual battery); 2)

aggression related non-sexual offenses (shootings, fights, non-sexual battery, disturbances); and 3)

thefts, burglaries and robberies.

An analysis showed that for crimes presumed to be especially likely to be related to adult

entertainment establishments, such as rape, molestation, indent exposure and sexual battery, the

number of calls for service for such crimes was nearly identical in the areas SUITounding the exotic

dance nightclubs and the comparison areas. For the aggression related non-sexual offenses, the results

indicated greater frequencies of arrest in the comparison areas compared to the club areas. In fact, the

percentage of calls for service as a function of the total calls for service made in the city for these

crimes was twice as high in the comparison areas as in the club areas. However, the thefts, burglaries

and robberies ru.Test frequencies were more comparable to one another.

It must be concluded that there is no empirical evidence for the presence of adverse secondary

effects, in the form of crime, surrounding exotic dance businesses in Fort Wayne. The assumption that

such effects exist and that a community may regulate these establishments on the basis of adverse

secondary effects is therefore not substantiated in the present study.

In addition, it is further concluded that unlike the general types of alcohol facilities (bars and

taverns) which do not present " adult" or exotic forms of entertainment, but which ru.e generally

associated with elevated levels of criminal activity, the exotic dance nightclubs in Fort Wayne do not

demonstrate any empirical connection to the "adverse secondary effect" of elevated crime rates.

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Secondary Effects 20

Social Theories of Crime Location

There is neither sound sociological theorizing nor empirical research to substantiate the idea

that crime would occur disproportionately in the areas immediately surrounding "adult" businesses.

Recently, there has been a resurgence of interest in crime "places"-- the geographical location

of crime -- among criminologists. This interest spans theory from the perspective of understanding the

etiology of crime, and practice from the perspective of developing effective criminal justice

interventions to reduce crime. For example, in Routine Activities Theory, first introduced in Cohen

and Felson (1979), later refined in Felson (1986, 1994), and extended to crime pattern theory in

Brantingham and Brantingham (1993), location or "place" is central to an understanding of crime

patterns. A particular geographical location may serve as a locus where motivated offenders come

together with desirable targets in the absence of crime suppressors (who include guardians, intimate

handlers (Felson 1986), and place managers (Eck, 1994). In this theorizing, the convergence of crime

opportunities in certain places is facilitated by both physical and social features. These features provide

a context or setting that is more or less conducive to crime (Clarke 1992).

The data obtained in the present study, consistent with these ideas about features of certain

places and increased crime, indicate that there is little difference between the exotic dance nightclub

areas and comparison areas especially in regard to sex-related crimes and property crimes. These clubs

do not appear to be locations where, as criminologists term it, potential sex offenders gather to prey on

desirable targets in the absence of crime suppressors, such as place managers.

The extensive management of the parking lots adjoining the exotic dance nightclubs, in many

cases including guards in the parking lots, valet parking and other control mechanisms, reduces the

possibility of disputes in the surrounding area. In addition, unlike other liquor serving establishments

(bars and taverns), disputes in the areas surrounding these exotic dance clubs between men regarding

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Secondary Effects 21

unwanted attention by other males to dates or partners are minimal due to the fact that the majority of

patrons attend the clubs without female partners. Further, security measures inside the clubs reduce the

potential for skirmishes among customers.

The possibility of interpersonal aggression may be greatly reduced in the vicinity of exotic

dance clubs, compared to most other locations where adults congregate, such as bars or taverns that do

not feature exotic dancing. The finding of a greater frequency of calls for service for nonsexual

offenses in the comparison areas, compared to the club areas, suggests that the control mechanisms

found in the exotic dance locations that may prevent criminal activity may not be present in the

comparison locations. Liquor serving establishments in the comparison areas may not maintain high

levels of parking lot and other customer security measures. This lack of crime suppressing features for

bars and taverns may account for the higher levels of arrest in the comparison areas.

Implications of the Pap's A.M. Decision for the Consideration od Secondary Effects Studies

It has been demonstrated through this study that there is a sufficient basis for a serious

challenge to the assumption that there is an empirical relationship between exotic dance businesses and

at least one kind of negative secondary effect, specifically increases in crime. Further, this conclusion

is based on research procedures that adhere to long-standing and well-accepted methodological

procedures for insuring sound scientific conclusions.

In Pap's, Justice O'Connor provides room for challenges, based on the collection of empirical

evidence, to the assertions made by municipalities regarding a relationship between adverse secondary

effects and nude dancing. She noted that the adult business in question in Pap's (Kandyland) could

have challenged the city of Erie's assertion that nudity led to ill effects, but did not do so. 23 This leaves

room for the introduction of secondary effects evidence, such as that collected in the present quasi-

23
Pap's, supra note 5 at 17 (plurality opinion).

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Secondary Effects 22

experimental investigation, by businesses both in city council hearings and in any subsequent court

litigation.

In order to remain consistent with the Supreme Court's holding in Pap's, lower courts will be

required to consider the methodological legitimacy of evidence of a relationship between negative

secondary effects and the subject businesses collected both by governments and by those business

owners who attempt to challenge government ordinances restricting their establishments.

In evaluating the admissibility of this evidence, the courts are best served by turning to

standards laid out in Daubert for the admissibility of scientific evidence. The study presented here

meets such standards for admissibility. The application of such standards, bolstered by Justice Souter's

opinion in Pap's, may force courts to reject studies that have been previously relied upon as evidence

of negative secondary effects, and require new, more methodologically sound, studies to demonstrate

the necessity for regulations directed at the exotic dance industry. The courts should be mindful of the

criteria laid out above for collecting empirical evidence in a methodologically sound manner.

Specifically, only evidence obtained using relatively closely matched comparison and study areas, or a

comparable procedure, may be acceptable.

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Secondary Effects 23

Table 1: Comparison of the club locations and the matched control locations on the variables related to
cnme.

CONDITON FEMALE TOTAL WHITE BLACK AGE 18-29 TOTAL INCOME


HEAD OF POPULATION DIVORCED 1997
HOUSE 1997 IN POPULATION
HOLD 1997
Brandy's 1.00 177.00 5503 .00 5309.00 128.00 1005.00 579.00 37488.00
Brandy's control .00 112.00 4055 .00 3667.00 275.00 902.00 379.00 46716.00

Cagney's Showclub 1.00 61.00 2233 .00 2103.00 78.00 350.00 164.00 38547.00
Cagney's Showclub .00 70.00 1374.00 1516.00 104.00 211.00 137.00 34912.00
control area
Eli's 1.00 20.00 1582.00 1426.00 90.00 456.00 172.00 39025.00
Eli's control area .00 30.00 1455.00 1332.00 74.00 364.00 168.00 36973.00

Pair A Dice 1.00 82.00 895.00 453 .00 411.00 145.00 83.00 27798.00
Pair A Dice control area .00 71.00 897.00 364.00 492.00 141.00 77.00 26293.00

Poor John's 1.00 18.50 284.00 195.00 74.00 57.00 43.00 21900.00
Poor John's control area .00 15.00 310.00 195.00 109.00 40.00 51.00 20190.00

Showgirl 1 1.00 177.00 5503 .00 5309.00 128.00 1005.00 579.00 37488.00
Showgirl 1 control area .00 112.00 4055.00 3667.00 275.00 902.00 379.00 46716.00

Showgirl 3 1.00 109.00 1649.00 1501.00 85.00 265.00 191.00 33147.00


Showgirl 3 control area .00 119.00 1599.00 1449.00 93.00 125.00 212.00 31408.00

Stewie's 1.00 60.00 681.00 604.00 57.00 178.00 96.00 32647.00


Stewie's control area .00 56.00 624.00 577.00 32.00 146.00 92.00 30959.00

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Secondary Effects 24

Table 2. Average values (means) for demographic variables averaged across exotic dance nightclub
and comparison areas.

Condition N Mean Std. Std. Error


Deviation Mean
Female Head of Household Comparison area 8 73.1250 39.0474 13.8053
1990
Club area 8 88.0625 62.4342 22.0738

Estimated 1997 population Comparison area 8 1796.1250 1460.3971 516.3283


Club area 8 2291.2500 2074.3695 733.4004

Number of households 1997 Comparison area 8 772.1250 583 .7914 206.4014


Club area 8 946.0000 824.2210 291.4061

WHITE Comparison area 8 1595.8750 1372.9412 485.4080


Club area 8 2112.5000 2069.7428 731.7646

BLACK Comparison area 8 181.7500 154.4092 54.5919


Club area 8 131.3750 115.7262 40.9154

People aged 18 - 29 Comparison area 8 353.8750 350 .6783 123.9835


Club area 8 432.6250 374 .0424 132.2439

Divorced males and females in Comparison area 8 186 .8750 129.1925 45.6764
1997
Club area 8 238.3750 216.0740 76.3937

1997 median household Comparison area 8 34270.8750 9247.0605 3269.3296


income
Club area 8 33505.0000 6044.2528 2136.9661

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Secondary Effects 25

Table 3. Statistical tests (t-tests) for demographic variables used to match club and comparison areas.

t value df Sig. (2-tailed) Mean


Difference

Female Head of Household -.574 14 .575 -14.9375


1990
Estimated 1997 population -.552 14 .590 -495.1250
Number of households 1997 -.487 14 .634 -173 .8750
WHITE -.588 14 .566 -516.6250
BLACK .738 14 .472 50.3750
People aged 18 - 29 -.434 14 .671 -78.7500
Divorced males and females -.579 14 .572 -51 .5000
in 1997
1997 median household .196 14 .847 765.8750
income

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Secondary Effects 26

Table 4. Calls for service in the city Fort Wayne generally and in exotic dance nightclub and matched
comparison areas by crime type.

Sex Crimes Club Comparison City-wide Total

Rapes 6 10 432
Molesting 6 6 677
Indecent exposure 29 22 590
Sexual battery 1 5 33
Total 42 43 1732

Additional Aggression Related Non-sexual


Offenses
Shootings 2 6 284
Fights 14 75 341
Non-sexual battery 18 61 887
Disturbance 77 103 1398
Total 111 245 2910

Thefts, Burglaries & Robberies


Theft from buildings 277 226 3476
Theft -bikes 10 16 1232
Burglaries 116 129 7238
Robberies w/ firearm 39 33 882
Robberies w/o firearm 25 20 1215
Total 467 424 14043

Overall Reported Offenses 620 712 18685

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Secondary Effects 27

Table 5. Percentage of calls for service in club and comparison areas as a function of total calls for
service for sex crimes; additional aggression related non-sexual offenses; and thefts, burglaries and
robberies.

Club Comparison Total


Sex Crimes
Total 42 43 1732
Percentage of sex crimes total 2.4% 2.4%

Additional A22ression Related Non-sexual Offenses


Total 111 245 2910
Percentage of aggression related non-sexual total 3.8% 8.4%

Thefts, Bur2laries & Robberies


Total 467 424 14043
Percentage of thefts, burglaries & robberies 3.3% 3.0%

Overall Reported Offenses 620 712 18685


Percentage of overall reported offenses 3.3% 3.8%

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Secondary Effects 28

Figure 1. Location of the exotic dance clubs in the Fort Wayne area (including the 1000 feet radius
around each club) and areas matched to the club areas by the demographic variables related to crime.

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Figure 2. Geographical location of the of calls for service for sex-related crimes in Fort Wayne,
generally, and the location of sex crime calls for service within the 1000 feet radius of the exotic dance
clubs calls for service and in the matched comparison areas.

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Figure 3. Geographical location of the calls for service for sex-related crimes in Fort Wayne for a
selected exotic dance club and its matched comparison area.

I rlo,T-

11
i. i
t
E
I I

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EXHIBIT 7

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69

An Examination of the Assumption that Adult Businesses


Are Associated with Crime in Surrounding Areas:
A Secondary Effects Study in Charlotte, North Carolina

Daniel Linz Bryant Paul


Kenneth C. Land Michael E. Ezell
Jay R. Williams

Recent Supreme Court decisions have signaled the need for sound empirical
studies of the secondary effects of adult businesses on the surrounding areas
for use in conjunction with local zoning restrictions. This study seeks to
determine whether a relationship exists between adult erotic dance clubs and
negative secondary effects in the form of increased numbers of crimes
reported in the areas surrounding the adult businesses, in Charlotte, North
Carolina. For each of 20 businesses, a control site (matched on the basis of
demographic characteristics related to crime risk) is compared for crime
events over the period of three years (19982000) using data on crime
incidents reported to the police. We find that the presence of an adult
nightclub does not increase the number of crime incidents reported in
localized areas surrounding the club (defined by circular areas of 500- and
1,000-foot radii) as compared to the number of crime incidents reported in
comparable localized areas that do not contain such an adult business. Indeed,
the analyses imply the opposite, namely, that the nearby areas surrounding
the adult business sites have smaller numbers of reported crime incidents than
do corresponding areas surrounding the three control sites studied. These
findings are interpreted in terms of the business mandates of profitability and
continuity of existence of the businesses.

Introduction

I n a 1977 ABC News Special entitled Sex for Sale: The Urban
Battleground, Howard K. Smith concluded a segment with the
following:

We thank John Couchell, Assistant Director, Strategic Planning & Analysis, Charlotte-
Mecklenburg Police Department for providing the data analyzed in this study and for
helpful advice. Any inadequacies of analysis or errors of interpretation are, however, solely
the responsibility of the authors of this article. Address all correspondence to Daniel Linz,
Professor, Department of Communication and the Law and Society Program, University of
California, Santa Barbara, CA 93106; e-mail: linz@comm.ucsb.edu.

Law & Society Review, Volume 38, Number 1 (2004)


r 2004 by The Law and Society Association. All rights reserved.
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70 An Examination of Adult Businesses and Crime

Commercial sex is often called a victimless crime. We have shown


that a glomeration of sex businesses, in fact, have many victims.
Residents move out of the areas from fear, customers desert
legitimate shops which have to sell out at a loss. City dwellers are
victimized by having to pay more taxes to make up for the areas
that are in arrears because of sex businesses. In the spreading
decay, muggers, dope pushers move in. Its harder to spot their
crimes in a general sea of rot. Police and courts tend to give up.
Civilization living by rules moves out and were all victims. Better
solutions may emerge, but for now the Detroit plan is the best in
sight. Leave aside individual arrests for obscenity, which the law
seems to have an impossible time defining. Pass a zoning law
allowing no sex-related establishment or service to exist within
three blocks, say, of any other. Let none become the nucleus for a
cancerous spread.
In the summer of 1976, the city of Detroit, Michigan introduced
zoning laws designed to break up the concentrated areas contain-
ing sex-related adult businesses.1 The assumption driving the
dispersion of concentrated adult businesses was the presumed
negative secondary effects of these businesses on the surround-
ing neighborhood. Enthusiasm for the Detroit zoning approach
quickly spread to other cities.
This diffusion of the Detroit zoning approach throughout the
nation over the last 25 years has produced a continuing history of
constitutional litigation. Since 1976, the Supreme Court has
decided a series of cases focusing on whether the free speech
clause of the First Amendment allows cities and states to enact
legislation controlling the location of adult businesses on the basis
of presumed negative secondary effects.2

The Courts Presumption of Adverse Secondary Effects


The rationale for the secondary effects doctrine was most
completely laid out in Renton v. Playtime Theatres, Inc., in 1986. In
Renton, the Supreme Court considered the validity of a Renton
municipal ordinance that prohibited any adult theater from
locating within 1,000 feet of any residential zone, family dwelling,
church, park, or school. The Courts analysis of the ordinance
proceeded in three steps. First, the Court found that the Renton
ordinance did not ban adult theaters altogether, but merely
required that they be a certain distance from so-called sensitive
locations. The ordinance, the Court said, was properly considered
1
Adult or adult-oriented or sex-related businesses may include pornography
stores, massage parlors, and topless or nude dance nightclubs. In the present study, the
adult businesses studied are topless nightclubs, also known as gentlemens clubs.
2
See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); City of Renton v.
Playtime Theatres Inc., 475 U.S. 41 (1986).

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to be a time, place, and manner regulation. The Court next


considered whether the ordinance was content neutral or content
based. If the regulation were content based, it would be considered
presumptively invalid and subject to the strict scrutiny standard.
The Court held, however, that the ordinance was not aimed at the
content of the films shown at adult theaters, but rather at the
secondary effects of such theaters on the surrounding community,
namely at crime rates, property values, and the quality of the citys
neighborhoods. Given this finding, the Court stated that the
ordinance would be upheld as long as the city of Renton showed
that its ordinance was designed to serve a substantial government
interest such as a reducing crime rates or maintaining property
values.
Further, in Renton the Court stated, for the first time, that a city
interested in restricting the operation of adult businesses was not
required to show adverse impact from operation of adult theaters
in its own community if no data on adverse impacts existed, but
could instead rely on findings of impacts from other cities as a
rationale for supporting passage of an ordinance. The Court ruled
that Renton could rely on the experiences of and studies produced
by the nearby city of Seattle as evidence of a relationship between
adult uses and negative secondary effects. Thus, the Court ruled
that the First Amendment does not require a city to conduct new
studies or produce new evidence before enacting an ordinance, as
long as the evidence relied upon is reasonably believed to be
relevant to the problem the city faces.
Since Renton, a number of cities, counties, and states have
undertaken investigations designed to establish the presence of
such secondary effects and their connection to adult facilities.
These studies have, in turn, been shared with other municipalities
and generally serve as the basis for claims that adult entertainment
establishments are causally related to harmful secondary side
effects, such as increased crime and decreases in property values.
Many local governments have relied on this body of information as
evidence of the secondary effects of adult businesses. Further, in
most cases, cities and other governmental agencies have used the
findings of a core set of studies from other locales as a rationale for
instituting regulation of such businesses in their own communities.
In more recent years, the Court has considered the constitu-
tionality of anti-nudity ordinances passed by municipalities or
states that have relied on negative secondary effects to justify the
legislation.3 In a fractured decision issued in 1991, the Court in
Barnes v. Glens Theatre Inc. held that the state of Indiana could

3
See e.g., Barnes v. Glens Theatre Inc., 501 U.S. 560 (1991); City of Erie v. Paps A.M.,
529 U.S. 277 (2000).

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72 An Examination of Adult Businesses and Crime

regulate public nudity.4 Justice Souter in a concurring opinion


ruled that the government could undertake such regulation on the
basis of the presumed negative secondary effects on the surrounding
community.5
In the 2000 decision City of Erie v. Paps A.M., the Court again
held that municipalities have the right to pass anti-nudity
ordinances on the assumption that nudity is associated with adverse
secondary effects such as crime.6 Again, the Court was fractured;
however, three justices agreed with Justice OConnors opinion that
in conformity with Justice Souters concurrence in Barnes, combat-
ing negative secondary effects associated with adult businesses was
a legitimate basis for the imposition of anti-nudity regulations.
Most notable for our purposes, however, was Justice Souters
partial concurrence and partial dissent in the Paps decision. He
significantly revised the position he took regarding the assumption
of secondary effects in Barnes. In Paps, Justice Souter said he was
now of the opinion that the evidence of a relationship between
adult businesses and negative secondary effects is at best incon-
clusive.7 He called into question the reliability of past studies that
purported to demonstrate these effects and suggested that
municipalities wishing to ban nudity must show evidence of a
relationship between adult businesses and negative effects.8
Most recently (2002) Justice OConnor, joined by the Chief
Justice, Justice Scalia, and Justice Thomas (with Justice Kennedys
concurrence) concluded that the city of Los Angeles may reason-
ably rely on its 1977 study to demonstrate that its present ban on
multiple-use establishments serves the citys interest in reducing
crime. In City of Los Angeles v. Alameda Books, Inc., et al., the Court
maintained that it was reasonable for Los Angeles to suppose that
a concentration of adult establishments is correlated with high
crime rates because a concentration of operations in one locale
draws, for example, a greater concentration of adult consumers to
the neighborhood, and a high density of such consumers either
attracts or generates criminal activity. Justice Kennedy, whose
opinion may be the controlling one in the case, reiterated the
assumption that adult businesses cause negative secondary effects.
In his opinion in Alameda he asserts, municipal governments know
that high concentrations of adult businesses can damage the value
and integrity of a neighborhood. The damage is measurable; it is

4
Barnes v. Glens Theatre Inc., 501 U.S. 560 (1991) (hereinafter Barnes).
5
As will be discussed in depth below, restrictions on erotic dance have typically
included requiring dancers to wear at least pasties and a G-string when performing.
6
City of Erie v. Paps A.M., 529 U.S. 277 (2000) (hereinafter Paps).
7
Id. at 6-7 (Souter, D. concurring in part dissenting in part).
8
Id. at 5 n.3.

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Linz, Land, Ezell, Paul & Williams 73

all too real. The Court held that a municipality may rely on any
evidence that is reasonably believed to be relevant for demonstrat-
ing a connection between speech and a substantial, independent
government interest.
However, the plurality added an important methodological
caveat concerning the evidence necessary to validate the assumption
that adult businesses cause secondary effects. The Court warned:
This is not to say that a municipality can get away with shoddy
data or reasoning. The municipalitys evidence must fairly
support its rationale for its ordinance. If plaintiffs fail to cast
direct doubt on this rationale, either by demonstrating that the
municipalitys evidence does not support its rationale or by
furnishing evidence that disputes the municipalitys factual
findings, the municipality meets the Renton standard. If plaintiffs
succeed in casting doubt on a municipalitys rationale in either
manner, the burden shifts back to the municipality to supplement
the record with evidence renewing support for a theory that
justifies its ordinance.

Empirically Testing the Assumption of Secondary Effects from Adult


Businesses
Justice Souter, joined by Justice Ginsburg, Justice Breyer, and
Justice Stevens, took the admonishment by the plurality in Alameda
that municipalities cannot rely on methodologically frail demon-
strations of secondary effects a step further. Justice Souter faulted
the city of Los Angeles because the city did not demonstrate that its
theory that regulation requiring adult establishments disburse and
be operated as free standing businesses will reduce crime. Justice
Souter asked the city to demonstrate, not merely by appeal to
common sense but also with empirical data, that adult businesses are
associated with crime and that its ordinance will successfully lower
crime.
In fact, Justice Souter claims that the only way to avoid a zoning
ordinance such as that passed in Los Angeles from being
unconstitutional due to the lack of content neutrality, a requirement
set out in Renton, is to conduct empirical evaluations of whether
such effects, assumed in the past, actually exist. He notes in Alameda:
(the) risk of viewpoint discrimination is subject to a relatively
simple safeguard, however. If combating secondary effects of
property devaluation and crime is truly the reason for regulation,
it is possible to show by empirical evidence that the effects exist,
that they are caused by the expressive activity subject to zoning,
and that the zoning can be expected either to ameliorate them or
to enhance the capacity of the government to combat them . . .

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74 An Examination of Adult Businesses and Crime

The Present Study


The first purpose of the present study is to conduct the type of
empirical study demanded by Justice Souter and noted to be
relevant by Justice OConnor and the other justices in Paps. Also, it
is designed to avoid the collection of shoddy data or the use of
(shoddy) reasoning as demanded in Alameda Books, in order to
determine if a relationship exists between adult businesses and
negative secondary effects, or whether, as Justice Souter has
contended, such a relationship must not be assumed. Further, this
evidence is obtained in accordance with established methodological
procedures so as to insure a high level of scientific reliability.
Past studies claim to have found crime but lack the essential
methodological features necessary to validly make such a claim.
Paul, Linz, and Shafer (2001) found numerous problems among
the most frequently cited studies by communities across the United
States. For example, the Indianapolis, Indiana study (1986) failed
to properly match study and control areas on variables, the
Phoenix, Arizona study (1979) relied on crime data collected for
only a one-year period, and in the Los Angeles study (1977)
authors admitted that the police stepped up surveillance of adult
businesses during the study period. Each of these methodological
problems severely limits the utility of these studies.9
9
As we noted above, the Court in