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High court to wade back into secondary-effects debate

Analysis

By Tony Mauro
Special to freedomforum.org

03.06.01

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  • Supreme Court: Federal officials can't shield tribal documents

    It seemed like déjà vu yesterday, as the Supreme Court agreed to consider yet another adult-entertainment case that will give it the chance to elaborate on the "secondary-effects" doctrine, which allows government to regulate expression because of the impact it might have on the surrounding community.

    Last year, the court determined in City of Erie v. Pap's A.M. that officials in the Pennsylvania town could ban nude dancing because it promoted alcohol abuse and domestic violence in the surrounding neighborhood.

    Yesterday, the justices agreed to hear City of Los Angeles v. Alameda Books, a case testing a city ordinance prohibiting "multiple-use" adult establishments on the same premises.

    As part of its effort to disperse adult businesses and prevent the development of red-light districts, the city of Los Angeles in 1978 required that these businesses locate at least 1,000 feet from each other. In 1983, the ordinance was refined to also prohibit more than one adult business from operating on the same premises.

    To support the law, the city relied on a 1977 study that showed that the concentration of adult businesses increased prostitution and robberies in the surrounding community.

    In 1995, the ordinance was invoked against Alameda Books and Highland Books, two companies that operated a combined adult bookstore and adult movie arcade that provided individual viewing booths for patrons. The companies challenged the ordinance as a violation of their First Amendment rights. A federal district court judge and a panel of the 9th U.S. Circuit Court of Appeals sided with the companies and struck down the multiple-use ordinance.

    The appeals court ruling, which will be reviewed by the Supreme Court, asserted that the city did not provide enough evidence to justify the multiple-use ordinance. The 1977 study, the appeals panel said, "did not identify any harmful secondary effects resulting from bookstore/arcade combinations as individual business units … Los Angeles has presented no evidence that a combination adult bookstore/arcade produces any of the harmful secondary effects identified in the study." In other words, the city had not shown that multiple adult uses on the same premises — the target of the ordinance — had any special secondary effects that warranted a separate ordinance banning them.

    The city argues that the study was sufficient to justify the ordinance. But the appeals court, in effect, said that before a city can regulate adult businesses based on their secondary effects, it must provide fairly specific evidence that the ordinance is necessary to accomplish its goal.

    "There is nothing in the case to indicate that the same type of behavior that occurs in viewing booths in combination bookstores/arcades would not occur in an establishment that only furnishes an arcade," the appeals panel said. "Therefore, any inference that the statute could have an ameliorating impact on the identified harmful secondary effects would be unreasonable."

    The case could encourage the Supreme Court to elaborate on how much evidence of secondary effects a government needs — and how specific it must be — to justify severe restrictions on expression that is protected by the First Amendment. Free-speech advocates are concerned that allowing governments to use thin or tangential evidence to restrict adult businesses will make it easier for officials to stifle unpopular speech of all kinds. The bookstore owners also say that the Los Angeles ordinance could be misused to ban all adult establishments by defining each type of product as a separate business.

    Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.

    Update

    Secondary-effects argument takes center stage before high court
    Analysis Business owners contend Los Angeles should have conducted studies on 'multiple use' adult establishments before outlawing them.  12.05.01

    Related

    Supreme Court to examine 5 First Amendment cases
    Analysis School voucher controversy to take spotlight, but Internet pornography, adult bookstores and protest permits also will share stage.  10.01.01

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