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Argued: June 4, 2009

Before: WINTER, CALABRESI, and SACK, Circuit Judges.

This case requires us to resolve an interesting and surprisingly unanswered question of First Amendment law: whether the constitutionality of a zoning ordinance should only be evaluated with regard to the “alternative avenues of communication” it leaves open at the time it is passed, or also those it leaves open at the time it is challenged. Plaintiff-Appellant TJS of New York, Inc. (“TJS”) brought a First Amendment challenge to a zoning ordinance enacted by Defendant- Appellee Town of Smithtown, seeking an injunction and declaratory judgment to the effect that the ordinance did not give TJS adequate alternative sites on which to locate its adult entertainment business. The United States District Court for the Eastern District of New York (Feuerstein, J.) denied the request for declaratory judgment and a permanent injunction, upholding the ordinance on the ground that adequate alternative sites existed at the time the ordinance was passed. See TJS of New York, Inc. v. Town of Smithtown, No. 03-CV-4407, 2008 WL 2079044 (E.D.N.Y. May 13, 2008) (“TJS”). We hold that the First Amendment requires courts to consider the adequacy of alternative sites available when the ordinance is challenged. We therefore vacate and remand for further proceedings. We reject, however, TJS’s argument that the District Court applied legally erroneous standards in determining whether a site was available for adult entertainment establishments, and we emphasize that nothing in our decision alters the fact that municipalities have broad constitutional power to limit adult entertainment uses.

 
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