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Secondary-effects argument takes center stage before high court

Analysis

By Tony Mauro
Special to freedomforum.org

12.05.01

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Adult Books in Los Angeles, as seen yesterday.

The Supreme Court yesterday appeared divided — if not confused — over how much specific evidence of "secondary effects" is needed before a city may enact a new ordinance restricting adult businesses.

The court heard arguments in City of Los Angeles v. Alameda Books, in which the operators of adult businesses challenged a 1983 ordinance banning "multiple use" adult businesses under one roof.

The ordinance was aimed at preventing adult "superstores." But in enacting the ordinance, the Los Angeles City Council relied on a 1977 study on the effects of single adult businesses on the safety and property values of the surrounding area. In 1995, the owners of Alameda Books and Highland Books, which offered adult videos, viewing booths and books under one roof, challenged the ordinance as a First Amendment violation. Their complaint: no new study, aimed at determining the effect of "multiple use" stores, had been conducted.

While the issue may seem trivial, First Amendment advocates see it as a crucial test of the potency of the "secondary effects" doctrine, which has been cited in efforts to restrict a wide range of speech. Legislators seeking to limit controversial forms of expression are able to justify their proposals not by attacking the speech itself but by citing the impact it will have on others — such as attracting crime or encouraging the abuse of women or children.

The only way to keep the doctrine from being overused, some say, is to force government officials to produce empirical evidence that the secondary effects they fear are real or plausible.

In the arguments yesterday, David Souter was the only justice who appeared insistent that Los Angeles should have studied the effects of multiple-use adult businesses before banning them. Souter, in a case last year involving nude dancing, had retreated from earlier positions and said specific evidence of secondary effects was necessary because of the importance of First Amendment protections.

Deputy City Attorney Michael Klekner told the court that a study specifically focusing on multiple-use businesses was not only unnecessary but would be "next to impossible to do."

Souter replied sharply, "If it's next to impossible to do, then why should the First Amendment allow you to do it?"

Klekner said the previous studies had sufficiently documented the kind of effects multiple businesses under one roof would have, but Souter persisted. "The evidence did not address the issue before us."

Justice Antonin Scalia intervened to help Klekner, suggesting that there was no difference in harmful seconday effects between two separate businesses next door to each other and one business with the wall between two sections knocked down. Klekner agreed, but again Souter retorted, "How do you know that any more than I do?"

Chief Justice William Rehnquist seemed unpersuaded that Los Angeles did anything wrong. He said a city is entitled to make reasonable inferences from earlier studies to fit new situations. "If it affects A, then it affects B," Rehnquist said.

John Weston, arguing for the bookstores, said inferences were appropriate only if the new situation were so unique that it could not be studied. "The city is saying that if it's an adult business, we can do anything we want," he said.

Much of Weston's half-hour before the court was spent answering peripheral questions about the definition of adult businesses and other aspects of the Los Angeles ordinance. For several minutes, Scalia offered his own interpretation of the law based on his reading of a footnote in a brief in the case. Weston politely and repeatedly disagreed.

Later in the argument, Scalia spoke to Weston again, this time to confess error. "I tend to read footnotes quickly," he said. On reading it further, Scalia said he had realized, "You were right."

After a startled silence, Weston jokingly said, "I'm going to go home now."

A decision in the case is expected before the end of the court's term next summer.

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

Update

High court overturns ruling on L.A. 'sex superstores'
But because there isn't majority fully endorsing ban on multi-use adult businesses, justices send Alameda case back to lower court.  05.13.02

Previous

High court to wade back into secondary-effects debate
Analysis Justices agree to use California case to determine whether cities can prohibit more than one adult business from operating on same site.  03.06.01

Related

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

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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