The decision in Alameda Books has given rise to a new conundrum for First Amendment attorneys and, to some extent, a new problem for their clients. For the first time, the Alameda Books decision authorized challenges to time, place or manner regulations of speech to confront the absurd studies that local governments use in support of their ordinances, such as those involving zoning, hours of operation, visibility of interiors of peep-show booths, and so on. Because these ordinances can be crippling to retail businesses, these issues are critical.
The Supreme Court, and now Chief Justice William Rehnquist in particular, gave cities a road map on how to regulate retail adult businesses out of existence in City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41 (1986). "So-called 'content-neutral' time, place, and manner regulations are acceptable," he wrote, "so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication."
The emphasis here is on the "designed to" thing. The opinion doesn't say that the regulations need to actually serve a substantial governmental interest, but only that they be designed to do so. The Renton opinion goes on to approve the use of studies from other cities, or almost anything else, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Thus, so long as the City purports to have a "reasonable belief" that the proposed ordinance will help deal with perceived secondary effects of the regulated speech businesses, that was enough. No opportunity, therefore, was available for the opponents of the ordinance to bring to court evidence that the "study" the city relied upon was utter nonsense. And, to be sure, many of them were just that.
Alameda Books, you may recall, involved a peculiar Los Angeles zoning regulation prohibiting any adult business that fell into more than one category, video store and peep-show arcade in that case. While reaffirming the general principles articulated in Renton, however, Alameda Books added to the Renton test. First, the City initially would be in good shape so long as the stated purpose of the ordinance and some supporting evidence considered when enacting it supports the position that the ordinance is expected to combat some adverse secondary effect of the regulated establishments. That was pretty much the case under Renton. However, the Alameda Books decision goes on to say,
"If plaintiffs succeed in casting doubt on a municipality's rationale ... either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings ..., the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance."
If the municipality fails, the ordinance is history.
Alameda Books adds yet one other caveat by way of Justice Kennedy's concurring opinion. He added to the City's burden by essentially requiring that the ordinance not simply reduce secondary effects by reducing speech. For the ordinance to stand, Justice Kennedy's opinion added the requirement "that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced." City of Los Angeles v. Alameda Books, Inc. , 535 U.S. 425 (2002).
All of this has brought an entire new dimension to court challenges to time, place or manner ordinances: Expert witnesses. However, offsetting the good of this newfound authorization to challenge the ludicrous evidence that cities often use to justify these ordinances is the bad: The cost of the experts. If you think lawyers are expensive, wait until you see how much experts cost!
But the experts are necessary for a variety of things. Cities, you see, are in love with relying upon "studies." Most of the studies are conducted by city workers rather than experts, so the methodology is often lacking and the results are often downright wrong. But a challenge to a study requires expert testimony (1) that the study's methodology was wrong; (2) that the data does not justify the conclusion reached; and (3) to supply (and possibly conduct) another study with correct methodology that reaches a different result. And once proven that the city's study was wrong, and therefore the ordinance will not in fact significantly reduce secondary effects, Justice Kennedy's opinion further allows additional proof that the ordinance will diminish speech in a meaningful way. That can be proven through yet another expert, perhaps an industry expert who has experience with similar regulations.
The industry attorneys have been establishing a stable of experts, all of whom have proficiently poked holes in the studies that cities have been using for decades to justify every regulation you can imagine. One such person, Dr. Dan Linz, has done a wonderful job of publishing articles both destroying those venerable studies and in some cases, using a city's own data, establishing that the presumed crime increase at which an ordinance was aimed in fact did not exist. Expect more of these publications to surface as the challenges add up.
Meanwhile, there are at least two cases knocking on the Supreme Court's door as this goes to press, one from California and one from Florida, either of which could bring this issue back before the Court, where the rules could be changed again. Center for Fair Public Policy v. Maricopa County, Arizona, 336 F.3d 1153 (9th Cir. 2003); Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Fla. , 337 F.3d 1251 (11th Cir. 2003). To be sure, this is a hot topic.
(Clyde DeWitt is a partner in the Los Angeles, California-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
