For the first time, the Supreme Court adopted an explicit secondary effects doctrine with regard to commercial establishments providing sexually oriented entertainment or selling sexually explicit material. Under the doctrine, governments may adopt policies to counter the adverse effects of adult entertainment such as declining property values, increased crime, and prostitution, regardless of whether the entertainment would be obscene based on Miller v. California (1973).
The City of Detroit adopted two zoning provisions amending its Anti-Skid Row Ordinance to deter the negative neighborhood impacts created by concentrations of adult bookstores or movie theaters. Establishments exhibiting material depicting specific sexual activities or human ‘‘anatomical areas’’ as outlined by the ordinances therefore could not be located within 500 feet of a residential area or 1,000 feet of two other regulated uses that included such businesses as bars, pawnshops, pool halls, and shoeshine parlors.
American Mini Theatres operated two theatres that violated these requirements and challenged the constitutionality of the amendments. A federal district court judge upheld the ordinances but the Sixth Circuit Court of Appeals reversed, arguing the ordinances imposed prior restraint on protected speech and denied equal protection by classifying theaters according to the content of the films they exhibited. The Supreme Court, by a plurality, reversed the Circuit Court and upheld the constitutionality of the ordinances. Stevens (who replaced Douglas in December 1975) wrote the opinion and was joined by Burger, White, and Rehnquist. Powell, concurring with the judgment, developed his own rationale for the judgment. Stewart and Blackmun wrote separate dissents; each joined the other’s dissent, and Brennan and Marshall also joined both dissents.
Stevens dismissed the respondent’s argument that the ordinances were impermissibly vague. The only vagueness that he conceded existed was the amount of sexually explicit depictions of the kind specified in the ordinances that establish the ‘‘emphasis’’ of films or other material that affect the classification of a theater or bookstore as ‘‘adult.’’ This uncertainty, however, is limited and easily resolved in the state courts through ‘‘narrowing construction.’’ The circuit court’s concerns regarding prior restraint are in Stevens’s view also misplaced. The ordinances’ restrictions on the location of adult theaters or bookstores, which do not apply to other theaters or bookstores, are no different than other zoning and licensing requirements, and are ‘‘not sufficient reason for invalidating’’ the ordinances.
Although Detroit’s ordinances classified businesses according to the ‘‘adult content’’ of their entertainment, the laws did not run afoul of the Court’s rule that laws affecting protected speech must be content neutral. In the instance of obscenity, the ‘‘paramount obligation of neutrality’’ is not violated because the ‘‘regulation of the places where sexually explicit films may be exhibited is unaffected by whatever ... message a film may be intended to communicate....’’ Moreover, Stevens added, it is ‘‘manifest’’ that society’s interest in protecting erotic materials with ‘‘some arguably artistic value’’ is of a lesser magnitude than its concerns for ‘‘untrammeled political debate.’’ It follows, he concluded, that the line drawn by the ordinances between theaters and bookstores according to the sexual emphasis of their business is justified by Detroit’s interest in preserving the quality of its neighborhoods.
Powell wrote a concurring opinion to explain his different approach to the case. In brief, Powell adopted the four-part test from United States v. O’Brien (1968) to determine whether Detroit’s ordinances, despite their ‘‘incidental impact upon First Amendment interests,’’ could nonetheless be justified under this test. One effect of this test is that as long as a law does not suppress expressive activity and is content neutral, intermediate and not strict scrutiny can be applied.
Powell’s approach gains a majority in City of Renton v. Playtime Theatres, Inc. (1986) with a very similar fact situation to Young. Powell’s concurrence also forms the core of the plurality’s decision in Barnes v. Glen Theatre, Inc. (1991), where it is extended beyond the zoning context, and in City of Erie v. Pap’s A.M. (2000). Both cases upheld ordinances requiring nude dancers to wear pasties and a G-string in order to combat the negative secondary effects associated with nude dancing in commercial establishments.
ROY B. FLEMMING
References and Further Reading
Cases and Statutes Cited