The Supreme Court has rule that regulations of sex
businesses are constitutional so long as they are not aimed a preventing speech
("unrelated to the suppression of free expression"), but rather are
directed at stopping the "negative secondary effects" associated with
"adult" establishments. Thus,
if your intent is to protect neighborhoods keep crime down and preserve
property values, and if you still allow the pornographic speech to occur
subject to certain regulations, there is no constitutional violation. (2.2)
There
is a presumption of First Amendment protection for all establishments that deal
in "speech-related" materials.
Given that presumption, you must allow them some "reasonable
alternative avenue of communication" within your community. (2.1)
Yes,
but that is a separate legal matter.
Even in obscenity law, you presume the material is First Amendment
protected until an obscenity conviction is obtained. But for purposes of a city's attempt to
regulate a sex business, you must presume that establishments with thousands of
books, magazines and videos are engaged in some protected speech activities.
(2.1)
The time, place and manner regulations discussed in this
book are constitutionally permissible because they are "content
neutral" in their application. This
means they are not directed at suppressing speech because of its content;
rather, they are intended to prevent the negative secondary effects associated
with peripherally speech-related businesses. See, e.g., Young v. American Mini Theatres,
427
Most laws that regulate or prohibit speech based on its
content are unconstitutional because they serve as impermissible prior
restraints on speech. Content-based
regulations are presumptively invalid.
R.A.V. v. City of St. Paul,
505
Obscenity was defined in the 1973 case of Miller v. California, 413 U.S. 15
(1973), and can be summarized as material that: (1) depicts specific sex acts
in a patently offensive way; (2) appeals to the prurient interest in sex as a
whole; and (3) lacks serious literary, artistic, political or scientific value.
See also Ashcroft v. American Civil
Liberties Union,
122
Many citizens fail to understand the distinction between
obscenity regulation and content-neutral time, place and manner
regulation. In their justifiable anger
about the encroachment of an "adult bookstore" into their community,
one of the most often repeated questions is this: "If these places are all selling
material that is obscene and unprotected by the First Amendment, why can't we
just zone them out of existence in our town?"
The answer to that lies with obscenity law, where the
Supreme Court has been clear in ruling that sexually explicit material is
presumed to be protected by the First Amendment until there is an adjudication
of obscenity. (See generally B. Taylor, B. Bull, A. Sears, L. Munsil,
The Preparation and Trial of an Obscenity
Case: A Guide for the Prosecuting
Attorney) (CDL 1989)(Available at: http://www.communitydefense.org). See Miller
v.
In Young v. American
Mini Theatres, Inc., 427 U.S. 50 (1976), the Supreme Court
was faced with a dilemma -- were zoning regulations that only applied to
businesses that sold pornography a prior restraint on a certain form of speech,
or were they constitutionally permissible because they were motivated by a
concern for the negative secondary effects created by those businesses?
The court of appeals split over the issue:
The majority opinion concluded that the ordinances
imposed a prior restraint on constitutionally protected communication and
therefore "merely establishing that they were designed to
Serve a compelling interest" provided an
insufficient justification for a classification of motion pictures theaters on
the basis of the content on the materials they purvey to the public. … [T]he
court held the ordinance invalid under the Equal Protection Clause. Judge Celebrezze,
in dissent, expressed the opinion that the ordinance was a valid "time,
place and manner regulation" rather than a regulation of speech on the
basis of its content.
427
The Supreme Court came down strongly on the side of local
governments in Justice Stevens' plurality opinion:
Since what is ultimately at stake is nothing more than a
limitation on the place where adult films may be exhibited, even though the
determination of whether a particular film fits that characterization turns on
the nature of its content, we conclude the city's interest in the present and
future character of its neighborhoods adequately supports its classification of
motion pictures.
427
Justice Powell provided the fifth vote to uphold the
ordinance in Young, and therefore his opinion is significant. He rested his support for the ordinance on
its content neutrality, and analyzed it under the four-part test from United States v. O'Brien,
391
* * *
Under [the O'Brien]
test, a governmental regulation is justified, despite its incidental impact
upon First Amendment interests, " if it is within the constitutional power
of the government; if it furthers an important 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
essential to the furtherance of that interest."
427
Powell, whose opinion became the holding because it was the
narrowest grounds on which the ordinance was upheld, concluded that it met the O'Brien test. Powell wrote that the ordinance was within
the power of the Detroit Common Council, and that it furthered the important
and substantial governmental interest of protecting "stable
neighborhoods" from "tragic consequences to social, environmental and
economic values." 427
Powell concluded that the "third and fourth tests of O'Brien are also met on this record. It is clear ... that
Ten years after Young,
the Supreme Court faced a similar issue in the case of City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986). Once again the Court
upheld the constitutionality of a city's zoning ordinance against a First
Amendment challenge.
Relying on the Young
precedent, the Court held that the City of Renton's ordinance "does not
ban adult theaters altogether, but merely provides that such theaters may not
be located within 1,000 feet of any residential zone, single or multiple family
dwelling, church, park or school. The
ordinance is therefore properly analyzed as a form of time, place, and manner
regulation." 475
After recognizing the presumption against the
constitutionality of regulations "enacted for the purpose of restraining
speech on the basis of its content," the Court noted that "so-called
'content-neutral' time, place and manner regulations are acceptable so long as
they are designed to serve a substantial governmental interest and do not
unreasonably limit alternative avenues of communication." 475
Relying on the district court's determination that the
"predominate" intent of the city was to protect against "the
secondary effects of such theaters on the surrounding community," the
Court concluded that "the city's pursuit of its zoning interest here was
unrelated to the suppression of free expression." 475
Several Supreme Court cases since
In Boos v. Barry,
485
So long as the justifications for regulation have nothing
to do with content, i.e., the desire to suppress crime has nothing to do with
the actual films being shown inside the adult movie theaters, we concluded that
the regulation was properly analyzed as content neutral.
In Turner
Broadcasting System, Inc. v. FCC, 512
Congress' overriding objective in enacting [the statute]
was not to favor programming of a particular subject matter, viewpoint, or
format, but rather to preserve access to free television programming for the 40
percent of Americans without cable.
512
In Madsen v. Women's
Health Center, Inc.,
512
Similarly, in Ward v.
Rock Against Racism,
491
The principle inquiry … in speech cases generally and in
time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the message it
conveys. The government's purpose is the
controlling consideration. A regulation
that serves purposes unrelated to the content of expression is deemed neutral,
even if it has an incidental effect on some speaking or messages but not
others.
Citing some of the above cases, the U.S. Court of Appeals
for the District of Columbia Circuit held that recordkeeping and disclosure
requirements for the producers of sexually explicit material were content
neutral:
There can be no question but that Congress's sole purpose
in adoption [the statute] was to address what the Attorney General's Commission
on Pornography found to be an important deficiency in the existing child
protection laws …
* * *
Cases like
That conclusion is reinforced by "[t]he design and
operation of the challenged provisions." Turner Broadcasting,
114 S.Ct at 2461.
More recently, upholding a ban on nude dancing and
utilizing a content-neutral analysis in City of Erie v. Pap’s A.M. TDA “Kandyland”,
529 U.S. 277, 293-96 (2000), the Court found that:
[The] State’s interest in
preventing harmful secondary effects [such as crime and other deleterious
effects] is not related to the suppression of expression… Here,
Even more recently, Thomas
v. Chicago Park District,
534 U.S. 316 (2002), the Court held that an ordinance requiring permits of
groups wanting to hold rallies in city parks was content neutral. Looking at
the purpose of the ordinance, the Court determined that the regulation sought
to protect the people and maintain order, not suppress speech.
All of these subsequent cases have clarified what the Court
said in Young and in
Regardless of a content-neutral statute's focus on the
secondary effects of sexually oriented businesses, there is no doubt that its
terms will have an incidental impact on expression that is protected by the
First Amendment. See, e.g. Schad v. Mount Ephraim,
452
If States are to be able to regulate secondary effects,
then de minimis
intrusions on expression such as those at issue here cannot be sufficient to
render the ordinance content based.
To pass constitutional muster, a sexually oriented
business ordinance must satisfy the previously mentioned four-part test of United States v. O'Brien,
391 U.S. 367 (1968). See Renton,
475
Under the O'Brien test, a regulation is justified despite its
impact on First Amendment interests "[1] if it is within the
constitutional power of the government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incidental
restriction on ... First Amendment freedoms is no greater than is essential to
the furtherance of that interest." O'Brien,
391
Such laws will generally be ordinances adopted by cities,
counties and towns. The overwhelming
majority of local governments today are vested with the police power which
encompasses the power to enact a zoning and regulatory ordinance, therefore
satisfying the first prong of O'Brien. See
Renton, 475 U.S. at 44; Euclid v. Ambler Realty Co.,
272 U.S. 365 (1926); Village of Belle
Terre v. Boraas,
416 U.S. 1, 9 (1974) (zoning may promote "family values [and] youth
values"); Berman v. Parker,
348 U.S. 26, 33 (1954) (zoning may promote values that "are spiritual as
well as physical, aesthetic as well as monetary"); Stansberry v. Holmes,
613 F.2d 1285, 1288 (5th Cir. 1980), cert.
denied, 449 U.S. 886 ("zoning provides one of the firmest and most
basic of the rights of local control").
The second prong of the O'Brien
test requires that the ordinance "furthers an important or substantial
governmental interest." O'Brien, 391
The third prong relates to the intent of the local
legislative body. This examines whether
"the governmental interest is unrelated to the suppression of free
expression." O'Brien, 391
The final prong of the O'Brien
test requires a review of the specific regulations of a particular
ordinance. It requires that the
incidental restriction on First Amendment freedoms be no greater than is
essential to further the governmental interest.
O'Brien, 391
The issues of vagueness and overbreadth
will be discussed in more detail as specific types of time, place and manner
regulation are addressed in subsequent chapters. However, a brief summary of these
constitutional concerns is appropriate here.
Vagueness concerns arise from the Constitution's due
process requirement that notice be given such that a person of normal
intelligence would be able to determine what conduct is prohibited by a
law. Courts are particularly sensitive
to vagueness challenges to statutes with First Amendment ramifications because
of the potential chilling effect on legitimate speech.
Overbreadth occurs when laws
intended to regulate speech or conduct in a constitutional manner sweep within
their ambit and thereby prohibit or chill speech that is fully protected by the
Constitution. A law that is
"facially" overbroad is one that a court can determine violates the
First Amendment simply by reading its terms, without knowing how the law might
be applied. A law that prohibited
handing out pamphlets without prior approval from a city is an example of such
a law. If the statute is not facially
unconstitutional, it may still be unconstitutional "as applied." In that circumstance, the government's use of
an otherwise valid statute could violate the First Amendment rights of a
particular group. For example, a law
that required speakers at a park to obtain permits would be unconstitutional as
applied if it was used as a vehicle for refusing permission to speakers with
particular political or religious viewpoints.
Because sexually oriented businesses sell material that is
presumed to be protected by the First Amendment, communities must regulate them
with great caution to avoid constitutional defects. The best course to follow is to adhere closely
to the guidelines laid down by the Supreme Court and other courts for enacting
content-neutral and constitutional time, place and manner restrictions on SOBs.
[1] Morality in Media,
Inc. maintains a lengthy list of links to federal and state
statutes that regulate obscenity. (visited