NYC crackdown on sex shops stands as Supreme Court refuses to take appeal

The Associated Press

01.11.99

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WASHINGTON — The Supreme Court today refused to hear challenges to New York City's zoning crackdown on strip clubs and smut shops.

The court, without comment, turned away appeals in which X-rated enterprises and their patrons argued that the regulations trampled free speech and threatened legal businesses.

The appeals said federal courts wrongly deferred to New York state court rulings that had upheld the regulations.

The city prohibits sex-oriented theaters, bookstores, massage parlors and dance clubs from operating within 500 feet of homes, houses of worship, schools or each other.

City officials estimated in 1995 that about 20 of 165 then-existing adult establishments didn't violate the regulations and could stay where they were. The others had to reduce the adult-oriented share of their business to less than 40%, or move - most likely to an industrial area of the city.

A number of X-rated businesses have closed or substantially changed their operations since the city began enforcing the rules last summer.

Soon after the regulations were adopted in 1995, about 100 adult businesses and a group of patrons contended in a state court lawsuit that their free-speech rights were threatened.

New York's highest court upheld the regulations last year, ruling that they did not violate the state constitution or the federal Constitution's First Amendment. The club owners and patrons then asked a federal judge to rule on their federal constitutional arguments.

But the federal judge said the state courts already had decided the same free-speech question.

The 2nd U.S. Circuit Court of Appeals agreed last June, saying the sex club owners already had a "full and fair opportunity" to argue their free-speech claim in state court.

In the appeals acted on today, lawyers for the businesses and patrons said they were entitled to a federal court ruling on the federal free-speech issue. They say the areas where sex-related businesses now are allowed are unreasonable, adding that the public will be denied access to constitutionally protected expression.

The cases are Amsterdam Video v. New York City, 98-569, and Hickerson v. New York City, 98-574.