California Supreme Court Ruling Helps Communities Preserve Quality of Life While Leaving Room for Free Expression

This California court ruling is a bit old (1989), but it strikes an appealing balance between community interests and free expression…

The state Supreme Court on Thursday gave local governments more power to use “porn zoning” laws to restrict the location of theaters that show sexually explicit movies.

In a widely watched test of municipal authority, the justices rejected a 1981 appellate court ruling that had prevented officials from enforcing zoning restrictions on adult theaters unless a majority of the films shown were X-rated.

Under the 1981 ruling, a Long Beach theater had avoided prosecution for zoning violations by showing pornographic films on only one of its two screens. Frustrated city prosecutors had asked the high court to invalidate the 1981 decision and allow them to move against the theater for only a single showing of an X-rated film.

In their decision Thursday, the justices, seeking to balance free-speech rights with a city’s interest in curbing blight, adopted a middle course that has been approved in other cases by the U.S. Supreme Court.

The state high court held unanimously that a single showing of such a film was not legally sufficient to subject the theater to porn zoning restrictions. But on a separate vote of 4 to 3, the court said the city could take action when sex movies were shown on a regular basis, accounting for a “substantial portion” of either the total films shown or their revenue.

“We give the ordinance a construction that is rationally tailored to support its asserted purpose of preventing neighborhood blight without allowing Long Beach to use the power to zone as a pretext for suppressing expression,” Chief Justice Malcolm M. Lucas wrote for the majority…

Gerry L. Ensley, a prosecutor for the city of Long Beach, said the ruling “was exactly what we wanted to accomplish.” Under the 1981 appellate decision, “porn zoning was dead in California,” Ensley said. “That ruling was killing us.”

Thursday’s decision also drew praise from a Los Angeles official who said it would greatly assist municipalities in controlling the location of a wide range of businesses that offer adult entertainment–including theaters, bookstores, arcades and video rental shops…

The ruling came in a 12-year legal fight over a Long Beach ordinance that prohibits adult theaters within 1,000 feet of a school or church and within 500 feet of a residential area.

The concept of using zoning laws to restrict pornography was approved by the U.S. Supreme Court in a landmark 1976 ruling. The court said that while such enterprises cannot be banned, they can be restricted to certain areas or dispersed throughout the community…

Lucas, in rejecting the 1981 appellate ruling, said the “preponderance” standard “violates the spirit” of U.S. Supreme Court rulings upholding the right of cities to regulate the location of adult enterprises to protect against their secondary impact on neighborhood residents, businesses and institutions.

The state high court’s new standard will give cities more flexibility–but still will not allow prosecution for only an “occasional or incidental” X-rated movie, the court said.

The justices recognized that their definition was not exact and said that Long Beach and other cities could amend their ordinances to further define the standard for an adult theater by the actual percentage of films shown or revenue received.
From the Los Angeles Times, “‘Porn Zoning’ Laws to Limit Theaters Upheld by State Supreme Court”, 6/30/89

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