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The Supreme Court's 'secondary' thoughts

By Paul McMasters
First Amendment Ombudsman
First Amendment Center
pmcmasters@freedomforum.org

07.30.02

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On any given day across this nation, there is at least one municipality — if not dozens — struggling to find a way to regulate or ban adult businesses. The task is complicated by the fact that the courts have consistently held that such businesses are engaged in expressive conduct.

Yet local officials are determined to push such expression not just to the geographic fringes of their communities but to the outer reaches of First Amendment protection. Recent Supreme Court decisions have strengthened one option. It allows local governments to regulate adult bookstores and video arcades for "secondary effects" such as higher crime rates and lower property values that some link to adult entertainment.

The Supreme Court first endorsed the notion that a city can use its zoning powers to regulate expressive conduct based on secondary effects 26 years ago when it handed down its decision in Young v. American Mini Theatres. Two years ago, the Court pushed the secondary-effects doctrine to its most expansive reading ever in City of Erie v. PAP's A.M.

In that opinion, the Court not only loosened evidentiary requirements for local governments but for the first time said cities actually could ban objectionable, but otherwise protected, expression based on the doctrine.

Earlier this year, the Supreme Court appeared to give even more power to the secondary-effects doctrine when it reversed lower court rulings that had thwarted the efforts of city officials in Los Angeles to regulate "sex superstores."

In 1978, Los Angeles enacted a law requiring adult businesses to be located at least 1,000 feet from similar businesses and 500 feet away from schools, religious institutions or public parks. But the law contained an apparent loophole. It was directed at a concentration of businesses but did not address instances where one X-rated theater added products and services to become a "sex superstore."

So in 1983, Los Angeles amended the law to ban multiple adult businesses from operating on the same site, citing the same 1977 study on which it based the original law. Two adult bookstores that had added video viewing booths to their operations challenged the new law, claiming that it violated their free-speech rights.

Although lower courts supported their claims, the Supreme Court upheld the city's position, saying that the 1977 study was sufficient evidence of secondary effects to justify the law.

Although it appeared that local governments' ability to regulate adult businesses was bolstered by the City of Los Angeles v. Alameda Books, Inc. ruling, a careful reading of the justices' separate opinions in that decision reveals that the devil is in the dissent and a poison pill is in the concurrence.

Alameda Books was a plurality, not a majority, decision. A fifth vote in any future review of such ordinances is not readily assured. In his concurring opinion, Justice Anthony Kennedy — the crucial fifth vote — forces the First Amendment back into the secondary-effects calculation. "A city may not assert that it will reduce secondary effects by reducing speech in the same proportion," he argues. "The rationale of the ordinance must be that it will suppress secondary effects — and not by suppressing speech."

The Court's deference to local officials in asserting secondary effects may not be assured either. Justice David Souter's dissent insists that in the Los Angeles case the evidence of secondary effects is insufficient. "Reviewing courts need to be wary when the government appeals, not to evidence, but to an uncritical common sense in an effort to justify such a zoning restriction," Souter writes.

In the line of secondary-effects decisions since Renton v. Playtime Theatres, Inc. in 1986, Chief Justice William Rehnquist and Justice Sandra Day O'Connor have led the plurality or majority. Often, they could count on several other justices to follow that lead. In Alameda Books, however, at least four of those justices appear to be rethinking their embrace of secondary-effects doctrine. (Justice Ruth Bader Ginsburg has consistently ruled against the secondary effects doctrine.)

Justice John Paul Stevens originally endorsed the doctrine in the 1976 Young ruling. Since then, he has come to believe that the Court has shifted from zoning the location and mode of operation of adult entertainment to the “total suppression of protected speech.”

In 1991, Justice Souter sided with O’Connor and Rehnquist in Barnes v. Glen Theatre, Inc. But his forceful dissent in Alameda Books unveils a suspicion that such content-based regulation of speech "carries a high risk that expressive limits are imposed for the sake of suppressing a message that is disagreeable to listeners or readers, or the government."

Two years ago, Justice Stephen Breyer voted with Rehnquist and O’Connor in Erie, but surprisingly he joins Souter's argument in Alameda Books that Los Angeles did not demonstrate that "an otherwise lawfully located adult bookstore combined with video booths will produce criminal effects."

Justice Kennedy represents the pivotal change in thinking, however. In Alameda Books, he expresses serious misgivings about too casual an application of the secondary-effects doctrine. "A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech."

If the city wants to regulate the untoward effects of such establishments, he reasons, it also must offer up evidence that its regulations will not result in the closure of legitimate adult bookstores and video arcades. “The challenge,” he writes, “is to protect the activity inside while controlling the side effects outside.”

These thoughtful caveats to the Alameda Books plurality decision add up to a significant warning to any city contemplating regulation of adult businesses with secondary effects as a justification.

At the core of the First Amendment is the notion that speech — about politics, religion, art, even sex — must not be subject to unwarranted suppression, direct or indirect, by those in power. At least five justices in this latest ruling are sending a message that they see in the evolving secondary-effects doctrine a threat to that core principle.

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