G. Supreme Court Ruling Should Clarify Secondary Effects Doctrine

    The vitality of the First Amendment can be tested most severely in cases involving adult-oriented expression.  Speech-restrictive principles and doctrines that arise out of adult entertainment jurisprudence have a tendency to seep into other areas of free-expression law, causing a lessening of First Amendment freedoms for all.

     Nowhere has this phenomenon occurred more than in the development of the so-called “secondary effects” doctrine.  This doctrine provides that laws and regulations are held to a lower form of judicial review if their primary purpose is to ameliorate the adverse secondary effects allegedly associated with certain offensive or controversial speech, rather than to suppress the offending speech itself.  A case involving multi-use adult businesses now under review by the U.S. Supreme Court may prove significant in clarifying and perhaps expanding this secondary effects doctrine.

     Generally, laws that target speech content are subject to the highest form of judicial review, known as strict scrutiny.  The Supreme Court has even said that content-based laws are presumptively unconstitutional.  However, laws that do not discriminate on the basis of content (so-called content-neutral laws) are subject to a lower form of judicial review known as intermediate scrutiny.

     The secondary effects doctrine allows seemingly content-based laws that single out adult businesses to be analyzed as content-neutral.  The U.S. Court of Appeals for the Sixth Circuit has referred to this change in First Amendment principles as a kind of “legal fiction.”  Richland Bookmarts, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998).  For example, city officials often claim that zoning restrictions on adult businesses are not designed to punish offensive expression.  Rather, the zoning restrictions are designed to mitigate certain harmful side effects (or “secondary effects”) from adult businesses -- such as increased crime and decreased property values.  

     A whole host of secondary effects have been cited as justification for restricting many different types of expression.  Some of these supposed effects are: prostitution, loss of residential privacy, traffic congestion, noise, security problems, appearances of impropriety, employment discrimination, identifying unfit judges, sexual arousal of readers, harm to children, and delaying and interfering with voters.  See David L. Hudson, Jr., “The secondary effects doctrine: The evisceration of First Amendment freedoms,” 37 Washburn L.J. 55, 77-78 (1997).

     On Dec. 4, 2001, the Supreme Court heard oral arguments in City of Los Angeles v. Alameda Books, Inc. (00-799), a case that involves a city ordinance prohibiting multiple-use adult businesses. 

     In 1977, the City of Los Angeles studied the allegedly harmful effects caused by a concentration of adult businesses in certain areas.  The next year, the city passed a law prohibiting an adult business from locating within 1,000 feet of another adult business or within 500 feet of a church, school, or public park.  Six years later in 1983, Los Angeles amended its ordinance to prohibit an adult entertainment business from operating as both an adult bookstore and an adult arcade.  In effect, the law prohibits a business from selling books and allowing customers to preview adult videos in the same store.

     The city contends that the ban on multiple-use adult businesses is justified on the secondary-effects rationale.  However, the city did not provide any evidence that so-called multiple-use adult businesses caused secondary effects.  Rather, the city simply relied on its six-year-old study that examined the effects of a concentration of numerous adult businesses in a certain area.

     In July 2000, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit struck down the ordinance in a challenge brought by two adult businesses that both rent and sell sexually oriented products and provide viewing booths for their products.  Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000).

     The Ninth Circuit noted that “Los Angeles has presented no evidence that a combination adult bookstore/arcade produces any of the harmful secondary effects identified in the [1977] study....  The Los Angeles study examined concentrations of multiple adult business establishments; it did not study the impact of individual establishments in any form, whether as solitary units or as part of the concentration of businesses,” the panel wrote.

     The government asserted in its brief that prior decisions by the Supreme Court establish that courts should defer to legislators when dealing with the regulation of adult businesses.  The government cited the Supreme Court’s two major adult entertainment zoning cases -- Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976), and City of Renton v. Playtime Theatres, Inc., 475 U.S. 61 (1986).

     This doctrine arose out of the land-use regulation of adult businesses in Detroit.  In American Mini-Theatres, the Supreme Court ruled that a zoning ordinance regulating the location of adult businesses did not violate the First Amendment even though adult theaters were singled out in the zoning law.  In a footnote, Justice John Paul Stevens wrote that the city was concerned about the harmful effects caused by the concentration of adult businesses, not the offensive speech that the businesses offered: “It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive’ speech.”

     Ten years later, the Court expanded the secondary effects doctrine in City of Renton v. Playtime Theatres, Inc.  In that decision, the High Court allowed city officials in Renton, Wash., to rely on the experiences of nearby Seattle in passing their zoning law prohibiting adult businesses from locating within 1,000 feet of any residential area, school, park, or church.

     The two prospective adult business owners challenging the Renton law emphasized that city officials had no evidence that adult businesses caused any harm in the city.  However, the Supreme Court majority adopted a deferential standard for municipal officials, writing: “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be related to the problem that the city addresses.”

     The adult businesses in the Alameda Books case contend that Los Angeles did not even satisfy this deferential standard because the city had no evidence that stand-alone combination adult businesses were causing any harmful secondary effects at the time it enacted the amendment.

     The Supreme Court’s decision will merit close attention for several reasons.  First, the Alameda Books ruling will signal whether the Court is maintaining its deferential attitude toward local lawmakers, or is ready to place upon them a greater burden of evidentiary proof to support their claims of adverse secondary effects.

     A greater reliance on evidence (as opposed to the mere assertions of regulators) can cut both ways in considering secondary effects, as a recent case in Atlanta showed.  In Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976 (11th Cir. 2001), the U.S. Court of Appeals for the Eleventh Circuit struck down a county law prohibiting adult businesses from serving alcohol.  The appeals court ruled in favor of the adult businesses, because a study by the Atlanta police department and another study commissioned by the city showed that adult businesses in Atlanta had less crime than regular bars.  (That decision has been appealed to the Supreme Court.)

     The adult businesses in the Atlanta case and many First Amendment advocates contend that the Court must hold cities to a higher standard of evidence to prove the existence of secondary effects.  Otherwise, courts may simply take judicial notice that all adult businesses cause adverse secondary effects.  And, as the Atlanta studies showed, such is not always the case. 

     Second, the Alameda Books decision will indicate whether the Supreme Court is again willing to uphold a total ban on an activity (in this case running a business that combines book sales and video previews), as opposed to a narrower ban on the activity’s location.  In City of Erie v. Pap’s A.M. tdba “Kandyland,” 529 U.S. 277 (2000), the Court upheld Erie’s outright ban on nude dancing -- as opposed, for example, to a typical zoning ordinance that would limit such activity to certain parts of the city.  The Court cited the negative secondary effects of nude dancing as justification for a total ban on that activity.  A ruling in favor of Los Angeles in Alameda Books will be another strong signal that the Court is indeed willing to allow far broader restrictions on expressive activity for the sake of preventing secondary effects.

     Third, the Court’s decision may provide additional precedent for extending the secondary effects doctrine to other activities and forms of expression.  For example, one federal district court recently used the secondary effects doctrine to uphold a high school dress code.  Long v. Board of Education, 121 F. Supp. 2d 621 (W.D. Ky. 2000).  The court identified the harmful secondary effects as gang activity, violence, and difficulty in identifying campus visitors. 

     Moreover, the Supreme Court has cited Renton for the principle that the government has a lower burden to justify speech restrictions in areas of campaign contributions and attorney advertising.  See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), and Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).

     Thus, even if one has little regard for adult-oriented expression, the Supreme Court’s decision in Alameda Books, Inc. v. City of Los Angeles is likely to be noteworthy.  Not only will this ruling help clarify the secondary effects doctrine as applied to adult entertainment jurisprudence, but may have an impact on activities extending well beyond that realm.

-- David L. Hudson, Jr.