Ruling confirms secondary effects can’t be afterthought

For many years, city officials across the United States have cited the mantra of “secondary effects” to justify myriad restrictions on adult entertainment.

The secondary-effects doctrine enables government officials to impose regulations and restrictions on the expressive content associated with adult businesses — such as nude performance dancing — by claiming they are concerned about secondary harmful social effects associated with the businesses. Such harmful effects include decreased property values and increased crime. This doctrine enables reviewing courts to view laws that seemingly single out the unsavory expression at adult businesses as content-neutral laws rather than what they often are — laws that restrict expression officials find distasteful and offensive.

The U.S. Supreme Court in a series of cases has not set the bar very high for government officials’ use of the secondary-effects doctrine. As the Court majority wrote 21 years ago in Renton v. Playtime Theatres, Inc.: “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”

This means that a city does not have to hire expensive land-use experts and conduct full-blown studies proving conclusively that a strip club will cause harm to surrounding businesses and the community. What it does suggest, however, is that city officials must review some evidence of secondary effects — not simply use the rationale as a post-hoc justification for a hastily passed ordinance.

The 2nd U.S. Circuit Court of Appeals’ recent decision in White River Amusement Pub, Inc. v. Town of Hartford shows that there are some limits to the use of the powerful secondary-effects doctrine. In September 2001, White River Amusement opened up an adult-entertainment business featuring nude and semi-nude dancing in Hartford, Vt. The five-member Town Selectboard then quickly passed a public indecency ordinance in the spring of 2002 to prohibit nude dancing. The town’s attorney advised the selectmen to adopt a resolution about secondary effects when adopting the proposed ordinance. The leaders did not adopt a resolution of secondary effects and did not conduct any independent analysis of actual or potential secondary effects of public nudity. The selectmen apparently did not review or discuss secondary-effects studies performed in other cities. Only later — after the passage of the ordinance — did the town’s planning department analyze secondary-effect studies from other locales.

The adult business sued the town in federal court, alleging that the ordinance violated the First Amendment. It prevailed before a federal district court, which noted that the town had failed to show that “it relied upon at least some evidence reasonably believed to be relevant to its interest in preventing negative secondary effects.”

The 2nd Circuit affirmed the lower court, took the town leaders to task for failing to consider evidence of secondary effects before passing their ordinance. Town leaders argued that they could rely on any evidence of consideration of secondary effects — either before or after the passage of their ordinance. The 2nd Circuit found this insufficient, finding that Renton requires “pre-enactment evidence.” The appeals court noted: “While a municipality may rely on the studies conduced by other towns, it may not simply rely on its knowledge that such studies exist.”

Years ago, Supreme Court Justice William Brennan warned that the secondary-effects doctrine could lead to an “evisceration of First Amendment freedoms.” At least some federal courts are requiring government officials to consider evidence of secondary effects before passing regulations. A ruling allowing post-hoc recitation of secondary effects as a cure-all justification would eviscerate First Amendment freedoms.

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