How the Supreme Court Reconciles Adult-Use Zoning with the First Amendment
Posted by NPNAdmin at 3/28/2007 7:00 AM 
Categories: Legal Strategies, Ordinances and Regulations, Debate on the Issues, First Amendment
Categories: Legal Strategies, Ordinances and Regulations, Debate on the Issues, First Amendment
Young v. American Mini Theatres, Inc. (1976) is not a new decision, but it is worth revisiting for its discussion of the First Amendment. In this case, the US Supreme Court affirmed Detroit's right to zone adult theaters. The Court recognizes the value of the First Amendment, but understands that it is not absolute, particularly with respect to commercial speech. Other values are also important.
Justice Stevens, Opinion of the Court
...A remark attributed to Voltaire characterizes our zealous adherence to the principle that the government may not tell the citizen what he may or may not say. Referring to a suggestion that the violent overthrow of tyranny might be legitimate, he said: "I disapprove of what you say, but I will defend to the death your right to say it." [n19] The essence of that comment has been repeated time after time in our decisions invalidating attempts by the government to impose selective controls upon the dissemination of ideas.
Thus, the use of streets and parks for the free expression of views on national affairs may not be conditioned upon the sovereign's agreement with what a speaker may intend to say. [n20] Nor may speech be curtailed because it [p64] invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger. [n21] The sovereign's agreement or disagreement with the content of what a speaker has to say may not affect the regulation of the time, place, or manner of presenting the speech.
If picketing in the vicinity of a school is to be allowed to express the point of view of labor, that means of expression in that place must be allowed for other points of view as well. As we said in Mosley:The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school's labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Cohen v. California, 403 U.S. 15, 24 (1971); Street v. New York, 394 U.S. 576 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270 (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445 (1963); Wood v. Georgia, 370 U.S. 375, 388-389 (1962); Terminiello v. Chicago, 337 U.S. 1, 4 (1949); De Jonge v. Oregon, 299 U.S. 353, 365 (1937). To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content [p65] would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, supra at 270.408 U.S. at 95-96. (Footnote omitted.)
Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.
This statement, and others to the same effect, read literally and without regard for the facts of the case in which it was made, would absolutely preclude any regulation of expressive activity predicated in whole or in part on the content of the communication. But we learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached. [n22] When we review this Court's actual adjudications in the First Amendment area, we find this to have been the case [p66] with the stated principle that there may be no restriction whatever on expressive activity because of its content.
The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say. [n23] Similarly, it is the content of the utterance that determines whether it is a protected epithet or an unprotected "fighting comment." [n24] And, in time of war, "the publication of the sailing dates of transports or the number and location of troops" may unquestionably be restrained, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, although publication of news stories with a different content would be protected.
Even within the area of protected speech, a difference in content may require a different governmental response. In New York Times Co. v. Sullivan, 376 U.S. 254, we recognized that the First Amendment places limitations on the States' power to enforce their libel laws. We held that a public official may not recover damages from a critic of his official conduct without proof of "malice" as specially defined in that opinion. [n25] Implicit in the opinion is the assumption that, if the content of the newspaper article had been different -- that is, if its subject matter had not been a public official -- a lesser standard of proof would have been adequate. [p67]
In a series of later cases, in which separate individual views were frequently stated, the Court addressed the broad problem of when the New York Times standard of malice was required by the First Amendment. Despite a diversity of opinion on whether it was required only in cases involving public figures, or also in cases involving public issues, and on whether the character of the damages claim mattered, a common thread which ran through all the opinions was the assumption that the rule to be applied depended on the content of the communication. [n26] But that assumption did not contradict the underlying reason for the rule, which is generally described as a prohibition of regulation based on the content of protected communication. The essence of that rule is the need for absolute neutrality by the government; its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator. [n27] Thus, although [p68] the content of a story must be examined to decide whether it involves a public figure or a public issue, the Court's application of the relevant rule may not depend on its favorable or unfavorable appraisal of that figure or that issue.
We have recently held that the First Amendment affords some protection to commercial speech. [n28] We have also made it clear, however, that the content of a particular advertisement may determine the extent of its protection. A public rapid transit system may accept some advertisements and reject others. [n29] A state statute may permit highway billboards to advertise businesses located in the neighborhood but not elsewhere, [n30] and regulatory commissions may prohibit businessmen from making statements which, though literally true, are potentially deceptive. [n31] The measure of constitutional protection [p69] to be afforded commercial speech will surely be governed largely by the content of the communication. [n32]
More directly in point are opinions dealing with the question whether the First Amendment prohibits the State and Federal Governments from wholly suppressing sexually oriented material on the basis of their "obscene character." In Ginsberg v. New York, 390 U.S. 629, the Court upheld a conviction for selling to a minor magazines which were concededly not "obscene" if shown to adults. Indeed, the Members of the Court who would accord the greatest protection to such materials have repeatedly indicated that the State could prohibit the distribution or exhibition of such materials to juveniles and unconsenting adults. [n33] Surely the First Amendment does [p70] not foreclose such a prohibition; yet it is equally clear that any such prohibition must rest squarely on an appraisal of the content of material otherwise within a constitutionally protected area.
Such a line may be drawn on the basis of content without violating the government's paramount obligation of neutrality in its regulation of protected communication. For the regulation of the places where sexually explicit films may be exhibited is unaffected by whatever social, political, or philosophical message a film may be intended to communicate; whether a motion picture ridicules or characterizes one point of view or another, the effect of the ordinances is exactly the same.
Moreover, even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice. 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 [p71] for placing them in a different classification from other motion pictures.
The remaining question is whether the line drawn by these ordinances is justified by the city's interest in preserving the character of its neighborhoods. On this question, we agree with the views expressed by District Judges Kennedy and Gubow. The record discloses a factual basis for the Common Council's conclusion that this kind of restriction will have the desired effect. [n34] It is not our function to appraise the wisdom of its decision to require adult theaters to be separated, rather than concentrated in the same areas. In either event, the city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.
Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, [n35] even though the determination of whether a [p72] particular film fits that characterization turns on the nature of its content, we conclude that the city's interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures. We hold that the zoning ordinances requiring that adult [p73] motion picture theaters not be located within 1,000 feet of two other regulated uses does not violate the Equal Protection Clause of the Fourteenth Amendment...
See also:
Harvard Law Professor Frederick Schauer's "The Boundaries of the First Amendment"; Government Regulates Many Kinds of Speech
Although the First Amendment refers to freedom of “speech,” much speech remains totally untouched by it. Antitrust law, securities regulation, the law of criminal solicitation, and most of the law of evidence, for example, involve legal control of speech lying well beyond the boundaries of the First Amendment's concern. It is not that such regulation satisfies a higher burden of justification imposed by the First Amendment. Rather, the First Amendment does not even show up in the analysis. The explanation for lack of First Amendment coverage lies not in a theory of free speech or in legal doctrine, but instead in an often serendipitous array of political, cultural, and economic factors determining what makes the First Amendment salient in some instances of speech regulation but not in others. Because the First Amendment's cultural magnetism attracts a wide variety of claims, nonlegal factors, far more than legal ones, determine which opportunistic claims to First Amendment attention will succeed and which will not. Legal doctrine and free speech theory may explain what is protected within the First Amendment's boundaries, but the location of the boundaries themselves--the threshold determination of what is a First Amendment case and what is not--is less a doctrinal matter than a political, economic, social, and cultural one.
US Supreme Court Sets Reasonable Guidelines for Adult-Use Zoning in City of Los Angeles v. Alameda Books (2002)
Renton requires that municipal ordinances receive only intermediate scrutiny if they are content neutral. There is less reason to be concerned that municipalities will use these ordinances to discriminate against unpopular speech.
Ulysses S. Grant: Matching the Constitution to Present Realities
We could not and ought not to be rigidly bound by the rules laid down under circumstances so different for emergencies so utterly unanticipated. The fathers themselves would have been the first to declare that their prerogatives were not irrevocable.
WMass Librarians: No Sign of Censorship Following Adult-Use Zoning
We believe that these libraries' experience strengthens our case that local citizens can be trusted to implement modest regulations on adult businesses, without harming the cultural vibrancy of Northampton.
I'm no lawyer, but hasn't the Court revisited this issue at least twice since this decision? I thought that Alameda is the currently applicable case. Doesn't that case supercede this one?
And anyway, it doesn't seem to me that the Court is really correct about this stuff. The Alameda case, as I understand it, says that in cases in which the two values--free "adult" speech and negative secondary effects--compete, the relevant lawmaking body can abridge the speech, in an effort to supress the secondary effects, without having to prove that the speech actually does lead to the cited effects. They can rely on studies performed by other jurisdictions, without performing their own studies or making an effort to show that the studies are genuinely applicable. This assumption is rebuttable, but the burden is on the porn store to prove that secondary effects do not exist.
But that seems crazy to me. Even if speech is unprotected by the First Amendment when it has secondary effects, I can't understand why the lawmakers shouldn't have to meet a heavy burden of proof before they can abridge speech. Since the right to free speech is guaranteed by the constitution, and so far as I know, the right to freedom from secondary effects is not, the presumption should be in favor of freedom of speech. Even if the right to freedom from secondary effects is, at bottom, more imortant (but its' not), the assumption should still be in favor of free speech. Unless you can *prove* that the free speech leads to secondary effects, the presumption should be in favor of free speech.
I think the Alameda case still makes it too easy to abridge speech.
Reply to this
NPN announces that they are “against mindless sex, abusive sex, sex without regard for issues like love, fidelity, commitment, pregnancy, disease and children.” If that is the case, NPN should also expand its mission to curbing the transmission of cable television and satellite broadcasts, eradicating movie rental establishments, and shutting down singles-bars. But, if you are attempting to impose your restrictive morality on society, you have to start with the weakest link in the cultural-filth food-chain.
NPN portrays the typical sexual-merchandise consumer as the poor misguided automaton with little control over his animal-impulses. By referring to the addictive qualities of pornography, NPN asserts that “consumers lose the ability to make wise choices.” Thus, NPN invokes the desperate need for paternalistic intervention. Based on their belief that “many people consume porn because they are misguided as to what will make them happy”, NPN promotes itself as an enlightened advocate for the morally superior social-construct. Luckily the citizens of Northampton have a diligent advocate fighting to ameliorate their imprudent attempts in finding personal fulfillment.
NPN largely ignores the legal avenues available to victims of duress, rape, battery, and unconscionable contracts through criminal prosecutions and civil suits. Based on NPN’s position, demagoguery is a more convenient tactic than acknowledging the critical role of individual responsibility necessary for a democratic society.
NPN disapproves of the free-market function of allocating property to the one willing to pay the most for it. NPN appealed to the property-owner not to lease or sell his property to the adult business. The property owner’s economic return on investment is secondary to NPN’s vaguely defined collective societal-interest. According to NPN, “elevating money to be the only important value doesn't seem very "Northampton", does it?” perhaps NPN would prefer the central-planning theory prevalent in socialistic countries where property usage is determined by a faceless bureaucracy, subject to the government’s arbitrary whims, instead of the law of supply and demand.
Unsatisfied with the lack of response from the letter mailed to the property owner in negotiations with the adult business, NPN then sent a copy of the letter to 29,000 registered voters in Northampton and Longmeadow. The letters were sent in an attempt to “let businesspeople know they should balance profit with compassion.” The recipients of the letters were also requested to “please ask the Goldberg’s to find a more suitable tenant for their King Street property.” This tactic demonstrates that NPN’s true intent is not to “increase awareness about the impact of porn”, but rather to intimidate, coerce, and shame property owners into bowing to their dictatorial views.
Reply to this
Our letter to the Goldbergs was strictly factual and avoided personal attacks, something that cannot be said for many who oppose us. If the Goldbergs felt shamed, that's because they are doing something shameful. They are proposing to make money with little regard for the suffering of others. In America, one of our better correctives for shameful acts is to expose them, as Ida Tarbell did to Standard Oil:
Intimidation has been the hallmark of many porn producers and defenders, not us.
Reply to this
This post can also be found on nopornnorthampton.org
I propose that nopornnorthhampton.com is an important site for educating people about censorship. It is essential for educational websites such as the above mentioned to exist in order for well adjusted, open minded individuals to have an opportunity to examine the myopic minded pro-censorship movement in contemporary America. This site reminds the reader that even in the new millennium some people, sadly enough, are still afraid of their own sexuality. NPN’s fear of ones sense of self-sexuality has manifested into absurd quest to frighten the weak of mind into suppressing otherwise healthy thoughts about sexual activity; whether it is public or private. I have ranted before on the fact that someone out there is supporting the multi-billion dollar porn industry; it can be a healthy outlet for sexual frustration or an entertaining evening for the individual, couples or groups. NPN fears unbridled thought without regard to the fact that pornography and loving, caring relationships have the ability to co-exist. Providing testimonials and cautions from aging porn stars hardly supports the argument that women and men involved in making pornographic videos are submissive and oppressed. Many Americans feel the same way about the non-porn related jobs that they slave away at tirelessly without the hope for a better employment opportunity. I find NPN’s explicit material warning heart warming and thank them for their outstanding efforts to protect me from my own thoughts and views on pornography. With that said, I am happy to live in a country where a site such as NPN can be accessed on the web if I choose to expose myself to their censorship agenda. It is unfortunate that NPN does not reciprocate the same respect for those who wish to avail themselves of other ideas. In closing, the one element of the site that I found particularly apropos can be examine by following the provided link or simply by reading a small part of Justice Stevens opinion in Young v. American Mini Theaters, Inc. (1976).
Justice Stevens, Opinion of the Court
...A remark attributed to Voltaire characterizes our zealous adherence to the principle that the government may not tell the citizen what he may or may not say. Referring to a suggestion that the violent overthrow of tyranny might be legitimate, he said: "I disapprove of what you say, but I will defend to the death your right to say it." [n19] The essence of that comment has been repeated time after time in our decisions invalidating attempts by the government to impose selective controls upon the dissemination of ideas.
Rick Bonadonna
Reply to this
Thank you for bringing up Voltaire's quotation in Young. Let's go further and revisit the majority's nuanced understanding of the issues, in affirming support for adult-use zoning...
I believe we have shown beyond a reasonable doubt that conditions in the porn industry are generally Dickensian, although we concede that the experience may be more positive for a small number of individuals and companies. The net earnings of most porn workers are modest. Their careers tend to be short. Their rates of STDs are high. We note the rampant use of intoxicants and the high rates of marital instability among workers in the sex industry. These do not strike me as indicators of happiness.
Finally, let's check in with Robert Jensen about the fear of sex:
[explicit text below]
Reply to this
Working in the "Industry" I have employed several entertainers and actors. So far, I havent had to force any to do this. Most of the time they contact us in order to get into the business. Many of the talented people you see in these films want to be there. The people who buy the films may be using them only or with a partner, who are you to say that porn cant be used in a loving way. I use it in loving ways with my Husband all the time.
Reply to this
We agree that some people can make and use erotic materials in consensual ways. However, we've made it clear that for a majority of porn performers, their careers are nasty, brutal and short, with a low chance of wealth and a high risk of disease. Research also makes clear that porn is damaging large numbers of marriages and families.
Those who make consensual BDSM porn should consider that viewers might force this material and its activities on their partners, as has been seen again and again. One of porn's core messages is that "No means Yes".
We're not calling for a ban on porn. We are calling attention to its dangers to help people notice warning signs of trouble.
Reply to this
By referring to "NPN's vaguely defined collective societal-interest", Mr. Gorrie appears to indicate that he doesn't take the documented evidence of secondary effects seriously. He breezily waves away the testimony of countless citizens and law enforcement professionals over many years and in many places, and the many studies that show how crime, blight, and harassment often attend adult businesses.
It would be nice if regular law enforcement could keep up with all outbreaks of secondary effects, but all too often the police find themselves overwhelmed or simply don't seem to care much. Mr. Gorrie appears to underappreciate the heroic efforts that can be required to reclaim a city when a large number of adult enterprises become entrenched and generate a large volume of secondary effects.
Mr. Gorrie shows great concern for free enterprise, but underappreciates how adult enterprises often damage the commerce and property values in their surroundings. See Hollywood, Springfield, Blaine, WA and Des Moines, WA for examples.
The choice is not between anarchy and fascism, but finding the right balance of laws and interests in a capitalist society. Adult-use zoning represents a moderate and good faith attempt to find this balance.
Reply to this
Mr. Gorrie and others try to portray our campaign as paternalistic, when the heart of it is to educate people so they can make informed choices for themselves as individuals. The state of sex education in America is dire, with porn myths (such as rape-supportive beliefs) allowed to go almost wholly unchallenged.
A well-functioning capitalist society requires a well-informed consumer. We provide that information in spades, with raw, unfiltered evidence so people can judge for themselves (example 1, example 2). That's how we show our respect for people. By contrast, porn defenders frequently give little weight to testimony from porn victims and suffering communities, or even ridicule them.
Reply to this
Let's further unpack that "vaguely defined collective societal-interest" and get down to more specifics. I hope Mr. Gorrie would agree that child molestation is a severe problem in our society. 10% of boys and 25% of girls are estimated to experience sexual abuse while growing up. Researchers are finding that porn (both adult and child porn) is a cause of child molestation, just as cigarette smoking is a cause of cancer. We have invited Professor Randazza to give us feedback on these findings, but he has not yet responded.
I would also like to know if Mr. Gorrie, in his zeal for unrestricted capitalism, would like to roll back OSHA regulations and other protections for workers. In particular, I hope he would agree that paid "ass-to-mouth" is a practice worth regulating, just as non-sexual film stunts are regulated. It has been a long-settled principle in American employment law that there are some risks you simply can't pay people to take on, even if they would accept these risks of their own free will.
Reply to this
In a comment on Professor Randazza's blog, Mr. Gorrie makes the following claim:
Mr. Gorrie must have missed the hundreds of opposition comments we have published (many of which we have responded to), or our discussions of opposition arguments such as those of Nadine Strossen, Wendy McElroy and Marty Klein. Sometimes we also critical of certain anti-porn strategies. We are not afraid of any argument from the opposition. We engage them directly and aggressively, and admit when an argument has merit.
Professor Randazza makes a similarly unfair claim that we are narrow and close-minded:
In their eagerness to portray us as censors who shrink from an open debate, Professor Randazza and Mr. Gorrie are quick to disregard the evidence before them.
Reply to this
While visiting your website I was perplexed by its purpose: education or censorship? The site states, “NoPornNorthHampton aims to increase awareness about the impact of porn on people and communities. We support the reasonable regulation of sexually oriented businesses in Northampton, Massachusetts.” This statement seems very reasonable in explaining the purpose of the site to be one of education. On the surface the site is littered with Supreme Court Cases, quotes from judges, and even a discussion on secondary effects, all of which seem extremely educational. What I found to be hypocritical is the section that specifically names a particular establishment and its address. This is a direct attack on one particular adult store and possesses no educational value. Where is the direct link of secondary effects arising from the existence of Capital Video Corporation in North Hampton? I clicked on the Capital Video Corporation link and was disturbed to read that one effect of adult shops is that adolescent girls are more likely to become sexual early and can cause eating disorders and low self esteem. I was under the impression that adolescent females were transforming thanks to MTV and Hollywood party girls like Paris Hilton and Lindsay Lohan. Eating disorders are plastered all over magazines in your everyday grocery store. Just walk into an Abercrombie & Fitch clothing store and view their ads. They usually include extremely nude girls and boys in compromising positions. How is an adolescent girl persuaded by an adult bookstore when they can’t even enter one? According to the law only persons over the age of 18 are allowed in those establishments. As a female, growing up I tried to immolate movie stars and musicians. I have an eleven year old cousin who wants to be just like Hilary Duff one day, but I have never heard her say, “God I hope I can be just like Jenna Jameson!”
I find nothing wrong with expressing a viewpoint but there does come a time when expression turns into oppression. If you do not want to look at porn you have the choice not to, just as I have the choice to do the opposite. It’s the choice that makes the United States great! I never want to live in a world where a government dictates what I can and can’t do. Thanks to adult book stores securing freedom of expression and speech, we live in a country where we can openly criticize our president without fear of repercussions. In fact your website exists partly because adult stores are allowed to exist. Both are forms of expression protected by the Constitution. You have every right to maintain the NoPornNorthHampton website as a way to get your message out, but remember you have this right partially because adult bookstores have the same right. If the court decides to censor adult stores whose to stop them from then turning on websites just as your own.
Jessica Bober
Reply to this
Capital Video nominated itself as a focus of our attention when they decided to locate their newest outlet in our neighborhood, next to homes, churches, counseling centers, a school of dance and a planned bike path. This location is about as inappropriate for a porn shop as one can be. It is absolutely our right to try to protect our neighborhood from the types of secondary effects Springfield is experiencing around a Capital Video porn shop there. If local residents won't stick up for our rights to a safe, prosperous neighborhood, we can hardly expect anyone else to do it for us.
In our research, we discovered Capital Video's mafia ties, the criminal record of its owner, and the exceptionally misogynistic nature of many of its wares. Capital Video bills itself as the "the largest adult retail chain in the nation." And not only does Capital Video sell adult material, its Metro affiliate produces porn films. All this reinforces our belief that it is entirely appropriate to focus on Capital Video as representative of the problems we have with the adult industry and its products.
Porn is not the only questionable influence on women in our culture today, but it is perhaps the most extreme. We refuse to be paralyzed by the argument that to improve anything, you must improve everything.
You appear to be following Nadine Strossen's approach of trying to equate criticism of the speech of another with censorship. This is false and itself an attempt to chill speech. Private protests are not government censorship.
Our blog shows the effects of porn and adult businesses spread beyond the immediate consumer or porn worker. This takes them from the realm of private choice and makes them a public matter.
Reply to this