For those of you who are retailers, no matter what your niche, the economic survival of your business probably is dependent upon the peculiar concept of "content neutral regulations of speech" that are supposedly designed to curtail "pernicious secondary effects" of sexually oriented speech. Those "content neutral regulations" include the zoning laws that relegate your adult bookstore and gentlemen's club businesses to the hinterlands; regulations that prohibit enclosed arcade booths, that require stadium lighting inside your business and prohibit your dancers from venturing closer than six feet from the customers; rules that curtail the hours of operation of all those businesses; and laws that require adult boutiques or mainstream video stores to limit their adult-video inventory to less than 7.5 or 15 percent of inventory or floor space. Rings a bell, doesn't it?
This column, the first in a series of articles on the subject, focuses on the roots of these regulations. The series will continue, analyzing how the Supreme Court's approval of a seemingly harmless Detroit ordinance started the courts on a slippery slope of approving all manner of regulations, and concluding with the current state of affairs and some predictions about where things may be going.
The concept was born in 1972, when the Detroit City Council decided to add, to the list of "regulated uses" in Detroit's "Anti-Skid Row Ordinance," several types of sexually oriented businesses. Those businesses, along with "establishments for the sale of beer or intoxicating liquor for consumption on the premises; hotels or motels; pawnshops; pool or billiard halls; public lodging houses; secondhand stores; shoeshine parlors; and taxi dance halls," the City Council claimed, "because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood."
Adult businesses thereby joined the shoeshine parlors, et al., as businesses that could not be situated within 1,000 feet of any two other such "regulated uses." Thus began the journey that now has censorship groups touring the country, trying to shame local governments into enacting a cadre of regulations the size of the Internal Revenue Code, ostensibly designed to curtail the undesirable secondary effects of sexually oriented businesses.
When the Detroit ordinance reached the Supreme Court, it was clearly a novel issue. After all, courts had consistently disapproved laws treating one category of speech differently from others, but had long approved the concept of zoning. There was no disputing the fact that Detroit's ordinance imposed constraints on sexually oriented speech — "material distinguished or characterized by an emphasis on matter depicting ... specified sexual activities or specified anatomical areas" — that were not imposed on any other genre of speech. But, then, this was nothing more than a new wrinkle in an existing zoning ordinance.
The Court that the since-dethroned President Nixon had stacked, as pledged, with "strict constructionist" justices apparently was not about to tell Detroit that it had to let porn theaters set up shop anywhere they wanted, and it did not. However, the Court could not reach a consensus on a constitutional way to justify approving the ordinance.
Justice Stevens (an appointee of President Ford), now considered at the liberal end of the spectrum of the justices now on the Court, wrote an opinion that, thankfully, garnered a total of only four votes, dangerously concluding:
"Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures."
However, the case was resolved by a fifth vote by Justice Powell, who declined to adopt that very censorial approach:
"I do not think we need reach, nor am I inclined to agree with, the holding ... that non-obscene, erotic materials may be treated differently under First Amendment principles from other forms of protected expression."
Fortunately, the Court never garnered a fifth vote in support of the proposition that erotic speech enjoys less protection under the First Amendment than so-called "core" speech, an approach that the Court has long endorsed with respect to "commercial speech" (which is defined as speech that which is essentially pure advertising, but is not, as some idiot censors occasionally claim, speech that is sold for money, like movies and newspapers). Even barroom striptease dancing now has been recognized to be "within the outer ambit of the First Amendment's protection," and has not been relegated to any lesser level of protection, as has commercial speech. Compare City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)(Explaining protection of erotic dancing) with Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341(1980) ("The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.").
Indeed, Justice Stevens clearly has reversed his position since then. It is clear that he, along with a majority of the Court, now believes that non-obscene, erotic movies enjoy full protection of the First Amendment. See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 453, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Souter, J., dissenting, in which Stevens, J., joined.). Parenthetically, this is a classic example of how lifetime appointment of justices of the Supreme Court tends to temper responses to political pressures after a while.
The Court's upholding of the Detroit ordinance turned on Justice Powell's concurring opinion, which took a novel approach that laid the groundwork for the "secondary effects" rules. Rather than lowering the level of protection for erotic speech, Justice Powell viewed the matter as "an example of innovative land-use regulation, implicating First Amendment concerns only incidentally and to a limited extent." Emphasizing the importance of the fact that zoning had "become an accepted necessity in our increasingly urbanized society" and acknowledging that motion pictures enjoyed the highest level of First Amendment protection (and, notably, citing cases dealing with erotic movies), he emphasized that there was "no indication that the application of the Anti-Skid Row Ordinance to adult theaters has the effect of suppressing production of or, to any significant degree, restricting access to adult movies." After all, every motion theater was required to comply with the generally applicable local zoning regulations in any event. Accordingly, Justice Powell concluded that the analysis of the validity of the ordinance should use the test adopted by the Court nearly a decade earlier in the celebrated draft-card burning case, United States v. O'Brien. There, the court upheld a requirement that all draft-eligible people have — and not destroy — their draft cards. Mr. O'Brien claimed that public incineration of his draft card was an expression of protest against the Vietnam War, which it unquestionably was. But the Court said, enforcement of such a rule in connection with expression was valid if the rule was "within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest." The parallel was that this zoning ordinance was aimed at urban blight, not at speech, just like the draft-card ordinance was aimed at protecting the congressional power to raise armies, not at speech. Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).
Since it was clear that the Detroit zoning ordinance clearly left an abundance of locations where adult businesses could locate, this seemed relatively harmless. However, a decade later, in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the more conservative court rallied around Justice Powell's approach, with soon-to-be Chief Justice Rehnquist writing an opinion that subtly afforded drastically increased latitude to local governments and continues to wreak havoc on adult businesses, and likely will do so for untold times to come. Renton and its aftermath will be considered in the next part of this series.
(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.)
