B.  Secondary Effects Doctrine Yields

Fragmented Decision by High Court

 

      The City of Los Angeles could rely on a six-year-old study to justify an ordinance prohibiting multi-use adult entertainment establishments, the U.S. Supreme Court ruled in City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002).  The decision represents another chapter in the continuing saga of one of the most dangerous doctrines in all of First Amendment jurisprudence -- the secondary effects doctrine.  See David L. Hudson, Jr., “The secondary effects doctrine: ‘The evisceration of First Amendment freedoms,’” 37 Washburn L.J. 55 (1997); David L. Hudson, Jr., Adult Entertainment and the Secondary Effects Doctrine: How a Zoning Regulation May Affect First Amendment Freedoms (Freedom Forum, 2002).

 

Background

      In 1977, the Los Angeles city planning commission issued a study, including a police department report, showing an increase in crime in areas with many adult businesses.  As a result, the next year the city passed an ordinance prohibiting an adult business from locating within 1,000 feet of another adult business or within 500 feet of any religious institution, school, or public park.  The law was designed to reduce the alleged secondary effects associated with adult businesses, such as increased crime and decreased property values.

      In 1983, the city amended its ordinance to prohibit “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.”  This meant that an existing adult bookstore could not have booths allowing patrons to preview films.  In other words, the law would require businesses that operated as adult bookstores/arcades to discontinue part of their business because they would be classified as multi-use adult businesses.  When passing this ordinance, the city relied on a six-year-old study that examined the effects of multiple businesses on a neighborhood.  The study did not focus on the effects of solitary, multiple-use adult businesses.

      In 1995, city inspectors discovered that Alameda Books, Inc., was operating as both an adult bookstore and an adult arcade in violation of the ordinance.  Alameda and Highland Books, Inc., another bookstore/arcade, then challenged the constitutionality of the ordinance in federal court. 

      A federal district court granted summary judgment to the bookstores, ruling that the 1983 ordinance was a content-based law in violation of the First Amendment.  The U.S. Court of Appeals for the Ninth Circuit also rejected the ordinance, but on different grounds.  The Ninth Circuit determined that even if the ordinance were content neutral, it still violated the First Amendment because  “deference to legislative decision making is not unbounded.”  The Ninth Circuit pointed out that the city’s prior study “did not identify any harmful secondary effects resulting from bookstore/arcade combinations as individual business units.”  Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000).  The appeals court also wrote that a “solitary bookstore/arcade combination is hardly of the ‘same character’ as a grouping of multiple adult business establishments in a given geographical area.”

      The city appealed to the Supreme Court.  On May 13, 2002, the Supreme Court reversed in a highly fractured 5-to-4 decision.  Five members of the court ruled that, at this early stage in the litigation, summary judgment for the adult bookstores was inappropriate.

 

Plurality Opinion

      Justice Sandra Day O’Connor -- joined by Chief Justice William Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas -- wrote the Court’s plurality opinion.  Justice O’Connor wrote that the Ninth Circuit imposed too great a burden on the city: “It is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates.”

      Justice O’Connor referred to the Court’s deferential standard for evaluating adult business zoning ordinances in City of Renton v. Playtime Theatres, Inc., 475 U.S. 4 (1986), in which the Court said: “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 relevant to the problem that the city addresses.”  The Court in Renton also said that cities “must be allowed reasonable opportunity to experiment with solutions to admittedly serious problems.”

      Applying this deferential standard, Justice O’Connor reasoned that the city could reasonably believe that a multiple-use adult business could cause secondary effects just as a concentration of adult businesses in a single neighborhood could.  She also said that the establishment of a ban on multiple-use adult businesses was “an innovative solution” that a city should have a reasonable opportunity to try.

      Justice O’Connor did say that a city cannot rely on “shoddy data or reasoning” and that a city’s “evidence must fairly support the municipality’s rationale for its ordinance.”

 

Justice Kennedy’s Concurrence

      Justice Anthony Kennedy, usually known for his staunch defense of First Amendment values, agreed with the plurality that the city should not lose at the summary judgment stage.  He also appeared to give the city the benefit of the doubt that two adult businesses under the same roof are similar to two separate adult businesses in terms of secondary effects.  “Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little,” Justice Kennedy wrote.  However, he stressed that “the purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech.” 

 

Justice Souter’s Dissent

      Justice David Souter authored a thoughtful dissent.  Ironically, Justice Souter had first extended the secondary effects doctrine from a zoning case to direct restrictions on nude dancing in his concurring opinion in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).  He was joined in his Alameda dissent by Justices Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens -- who first used the term “secondary effects” in the 1976 zoning case Young v. American Mini Theatre, 427 U.S. 50 (1976).

      Unlike the plurality or Justice Kennedy in his concurrence, Justice Souter characterized the effect of the ordinance as prohibiting a single, traditional, and “commercially natural” adult business from providing “combinations of selling and viewing activities that have commonly been combined.”

      Justice Souter, like Justice Kennedy, also emphasized the “legal fiction” of secondary effects jurisprudence in that content-based zoning laws are characterized as content neutral.  For this reason, Justice Souter proposed a new category in addition to “content-based” and “content-neutral,” which he called “content-correlated.”  Whether that term catches on as standard First Amendment lingo remains to be seen.  

      Justice Souter showed his distaste for the city’s motives in his conclusion:

 

Since the city presumably does not wish merely to multiply adult establishments, it makes sense to ask what offsetting gain the city may obtain from its new breakup policy.  The answer may lie in the fact that two establishments in place of one will entail two business overheads in place of one: two monthly rents, two electricity bills, two payrolls.  Every month business will be more expensive than it used to be, perhaps even twice as much.  That sounds like a good strategy for driving out expressive adult businesses.  It sounds, in other words, like a policy of content-based regulation.

 

      The case is now back in the federal district court for further litigation.   

 

More Questions Than Answers

      The Supreme Court’s decision in Alameda Books will leave many city officials shaking their heads in bewilderment at which standard to apply.  This ruling hearkens back to the fragmented 1991 Barnes decision in which there was no majority opinion and lower courts were confused as to which opinion governed.  One federal appeals court has already bluntly stated: “Alameda Books is difficult to apply, because no single opinion garnered the votes of a majority of Justices.”  Encore Videos, Inc. v. City of San Antonio, 310 F.3d 812 (5th Cir. 2002).  That court, in fact, read the opinions of Justices Kennedy and Souter as the standard to apply from Alameda.  Some legal commentators believe, in the words of First Amendment expert Paul McMasters, that “the decision reveals that the devil is in the dissent and a poison pill is in the concurrence.”  See Paul McMasters, “The Supreme Court’s ‘secondary’ thoughts,” at www.freedomforum.org (July 30, 2002). 

      Still, a majority of justices (the plurality and Justice Kennedy) reaffirmed the deferential Renton standard that gives city officials broad discretion -- in this case enough discretion to allow Los Angeles to experiment with a multiple-use ban that could force the closure of many businesses.  Suffice it to say that future litigation will be needed to determine the scope of the Alameda decision.

 

--David L. Hudson, Jr.