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'Selling sex toys is not speech:' Fargo seeks to have Romantix case dismissed by court

Romantix wants the court to force the city of Fargo to allow Romantix's move to downtown. The city says that sexually-oriented products do not qualify for free speech protections.

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The owners of the Romantix adult entertainment store want to move the shop into a new location in the Syndicate Building, at 74 Broadway in downtown Fargo. The Syndicate Building is seen on July 28, 2022.
Chris Flynn / The Forum
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FARGO — The city of Fargo is asking a federal district court to dismiss a lawsuit against the city brought by the Romantix adult entertainment store, asserting that sexually-oriented products do not qualify for free speech protections.

The owners of the Romantix store in downtown Fargo are suing the city and the city’s director of planning and development Nicole Crutchfield for preventing the company from moving into the Syndicate Building in downtown Fargo.

Romantix is seeking a preliminary injunction that would allow their business to move into the new space. The company says the city's actions violate their First Amendment and due process rights and are therefore illegal.

Fargo says the store cannot be given First Amendment free speech protections in this case because they are not selling books or magazines.

“Selling sex toys is not speech,” the city said in court documents.

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“The First Amendment is the thread that runs through all of Romantix’s claims, but Romantix has pleaded itself out of the First Amendment by disavowing any intention of disseminating adult media," the city said.

Fargo puts forward that while books and magazines may constitute free speech items, sexually-orientated items do not qualify for the same protections.

“Romantix’s planned store would sell dildos, not discourse,” the city said, adding they feel this case concerns sexual devices, not speech.

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The Romantix adult entertainment store at 417 Northern Pacific Ave. is seen July 28, 2022, in downtown Fargo.
Chris Flynn / The Forum

Because city ordinance related to zoning restrictions does not allow an adult bookstore in the proposed location, Romantix said they will no longer sell books or magazines to avoid the city preventing the move.

The city, however, says that because Romantix is selling adult novelty items, the store is similar to an adult bookstore and thus not allowed in downtown.

Romantix asserts that the city’s definition of adult bookstore is unconstitutionally vague.

“The city commission affirmed the denial of a permit for Romantix at 74 Broadway North because adult uses like adult bookstores are not allowed (there),” court documents from the city said.

Because Romantix would close its current store, which does sell books, the city alleges the company would in fact be reducing the amount of stores in Fargo selling items protected by free speech.

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Romantix's request for a preliminary injunction, filed Nov. 7 in the U.S. District Court for the District of North Dakota, also asks the court to prohibit the city from applying its definitions of “adult bookstore” and “adult entertainment center” to Romantix, or from using the “change of use” permitting process against the firm.

Crutchfield previously denied Romantix a "change-of-use" permit because the store did not meet zoning regulations, which don't allow adult bookstores in that location downtown.

Romantix states that they are engaging in First Amendment activity through their goods, and that the city of Fargo has denied them the ability to open and operate based on the content of their speech/expression.

Court rulings on the Romantix's request for injunction and the motion to dismiss is unclear, and no court hearings have been set.

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