The authority of local governments to regulate the location and operation of commercial enterprises by means of zoning is well established. When the regulated business is engaged in expressive activity protected by the First Amendment, however, this authority may be called into question. And when the expression takes the form of sexually oriented but nonobscene ‘‘adult’’ books, videos, or dancing, significant tension can arise between First Amendment freedoms and community values.
In addition to specifying particular geographical areas in which sexually oriented businesses must operate, zoning codes commonly require such enterprises either to be separated by a certain distance from other, similar businesses (as well as from schools, homes, parks, and churches) or, alternatively, to be clustered together into sexually oriented ‘‘combat zones.’’ Either strategy will usually be upheld if the regulation has the primary purpose of preventing adverse community impacts, is not aimed at suppressing a certain type of communication (that is, is content neutral), and does not unreasonably foreclose the public’s access to the protected expressive activity.
Standards of constitutionality in this field are somewhat tentative, in part because of the prevalence of highly fractionated Supreme Court cases decided by narrow majorities or pluralities. The Court was first asked to review a local zoning restriction of adult-oriented businesses in a 1976 case, Young v. American Mini-Theaters, Inc. In a plurality opinion authored by Justice Stevens, the Court upheld a Detroit ordinance requiring adult businesses to be separated by at least 1,000 feet from each other, and from residential properties. Oddly, the Stevens plurality applied the mid-level standard of review normally applied in equal protection cases not involving suspect classes, even though the ordinance had been challenged under the First Amendment. American Mini Theaters established that the Court would not afford adult entertainment the same degree of protection under the First Amendment as higher-valued forms of expression, such as political debate, but would nevertheless apply a meaningful level of scrutiny. This case also coined the doctrine of ‘‘secondary effects,’’ holding that local governments have a legitimate interest in controlling negative social activities and conditions that tend to accompany the operation of adult businesses.
The same rationale was applied to nude dancing establishments in Schad v. Borough of Mount Ephraim, a decision that yielded five different opinions, none of which commanded more than three votes; and was instrumental in City of Renton v. Playtime Theatres, Inc. The City of Renton’s zoning banned adult theaters from 95 percent of the city’s area. The Court upheld this ordinance because it was ostensibly aimed at mitigating negative secondary effects, although the city had not conducted a study to determine whether such effects were actually present. Finally, in 2003, a plurality of the Court upheld an adult-business dispersal ordinance in City of Los Angeles v. Alameda Books, Inc. But a four-justice dissent called for striking down such laws as impermissible regulation of expressive content, and Justice Kennedy’s concurrence emphasized that dispersing the secondary effects of adult businesses must not have the effect of reducing protected speech.
References and Further Reading
Cases and Statutes Cited
See also Content-Neutral Regulation of Speech; First Amendment and PACs; Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981); Young v. American Mini- Theaters, Inc., 427 U.S. 50 (1976)