By David L. Hudson Jr., First Amendment Scholar
September 13, 2002
Adult bookstores face a range of challenges that implicate First Amendment freedoms, including zoning ordinances, licensing laws and obscenity prosecutions.
Many municipalities regulate the location of adult businesses by either dispersing them throughout certain areas or relegating them to a particular part of town. Cities generally justify these zoning measures by relying on what is known as the secondary-effects doctrine.
Government officials claim adult bookstores and other businesses that feature adult entertainment (such as adult arcades, adult theaters and nude-dancing establishments) cause adverse side effects, or secondary effects, that are not related to the expressive content offered by these businesses. These secondary effects include decreased property values and increased crime.
The secondary-effects doctrine provides that laws targeting adult businesses are entitled to a less-rigorous form of judicial review. Municipal officials argue that they do not pass zoning laws to suppress free expression that they don’t like, but to combat harmful secondary effects. Many zoning laws affecting adult bookstores have been upheld based on this secondary-effects rationale.
Adult-bookstore owners sometimes face an uphill battle in obtaining licenses to operate their businesses. Many communities, particularly smaller ones, simply do not want an adult business opening in their area. They sometimes make it difficult for a prospective business owner to obtain a license.
Other communities will revoke an adult bookstore’s license if it is found in violation of city codes. Many adult-business owners argue that city officials camouflage their discriminatory intent by hiding behind these licensing laws.
In 2002, the Supreme Court examined the constitutionality of a Los Angeles law prohibiting “multiple-use” adult bookstores, or businesses that both sell adult videotapes and books and allow patrons to view segments of the videos in the store.
In the case, City of Los Angeles v. Alameda Books, Inc., the city argued that Alameda Books was a multiple-use business because it operated as both an adult bookstore and adult arcade. The city maintained that this law would prevent “sex supermarkets.” The owners of Alameda Books said that the city was restricting fundamental First Amendment freedoms to buy and watch certain expressive material. They also contended the city had no evidence that multiple-use adult businesses caused particular secondary effects beyond those of single-use adult businesses.
In a highly fragmented decision, a bare majority of the Supreme Court ruled in May 2002 that it was reasonable for the city to rely on its prior study examining the harmful effects of numerous single adult businesses in a neighborhood to justify a ban on multiple-use businesses. The majority did note that “the municipality’s evidence must fairly support the municipality’s rationale for its ordinance.”
The case was sent back to the lower courts for further litigation. The May 2002 decision in Alameda Books could lead to more ordinances prohibiting adult bookstores from having viewing booths and other types of adult entertainment. It will take more litigation to sort out the ramifications of high court’s ruling.
Adult bookstores also must comply with obscenity laws or face criminal penalties. Vice officers will sometimes go undercover and buy or rent certain videotapes of hard-core pornography that they may deem obscene.
Obscenity cases are tried before a jury that applies its “contemporary community standards.” In these cases, adult businesses often try to present evidence that similar materials are prevalent and accepted in surrounding areas and have a reasonable degree of community acceptance.
Other restrictions on adult businesses
Adult businesses face a wide range of regulations. These restrictions vary from locale to locale, but a standard adult-business ordinance often contains a host of regulations ranging from where the business can locate to how the dancers must conduct themselves inside the business.
Hours of operation
Many cities attempt to limit the hours of operation of adult businesses. City officials contend that these provisions are reasonable time, place and manner restrictions on speech. They argue that the businesses are still open for most hours of the day and that the regulations are justified by a reliance on secondary effects.
Club owners respond that the rules mandating hours of operation are simply a thinly veiled disguise for prejudice against their form of expression. They contend that more crime is committed at 24-hour convenience stores than at adult establishments.
Most courts have sided with the city regulators. In 1999, in DiMa Corp. v. Town of Hallie, the 7th U.S. Circuit Court of Appeals ruled that an hours-of-operation restriction was constitutional even though the city could point to no evidence that the only adult business in its town attracted crime.
The town argued that its law limiting the hours of operation was based on the experiences of a nearby town. The 7th Circuit determined that the town had only “minimally” satisfied its burden of proof.
The appeals court did note that it had “no reason to believe that this is a significant impairment of Pure Pleasure’s business.” This seems to imply that if an adult business could show both a lack of crime at its business during late-night and early-morning hours and also a loss of profits, then it might be able to ward off such a restriction.
More and more adult businesses are now commissioning studies, performed by experts such as Bruce McLaughlin, to show that adult businesses do not cause a greater incidence of crime than non-adult businesses.
Licensing and procedural safeguards
Another method cities use to regulate adult businesses is through administrative licensing schemes. If an adult business fails to comply with city codes, regulators may revoke its operating permit. If an adult business seeks to operate in a new location, it often must clear certain hurdles before obtaining the necessary approval from city officials.
Many adult-entertainment businesses argue that city officials camouflage their discriminatory intent by hiding behind licensing laws. However, such laws are also subject to First Amendment challenges.
In its 1965 decision Freedman v. Maryland, the U.S. Supreme Court said that a Maryland film censorship statute needed three procedural safeguards to be constitutional:
In the 1990 decision FW/PBS v. City of Dallas, the U.S. Supreme Court said that the first two prongs of the Freedman analysis were applicable to licensing ordinances for adult businesses. These two procedural safeguards include:
The lower courts are split on the issue of what constitutes “the possibility of prompt judicial review.” Some courts define this as mere access to the courts. Other courts require both a prompt hearing and a prompt decision by a judge. The 9th U.S. Circuit Court of Appeals described the necessity of judicial review in Baby Tam & Co v. City of Las Vegas (1998) as follows:
“The phrase ‘judicial review’ compels this conclusion. The phrase necessarily has two elements — (1) consideration of a dispute by a judicial officer, and (2) a decision. Without consideration, there is no review; without a decision, the most exhaustive review is worthless. In baseball terms, it would be like throwing a pitch and not getting a call. As legendary major league umpire Bill Klem once said to an inquisitive catcher: ‘It ain’t nothing till I call it.’ This is also true of judicial review. Until the judicial officer makes the call, it ain’t nothing.”
Adult-business owners insist that many licensing ordinances operate as prior restraints on expression. The laws, they say, allow a city to discriminate and target certain businesses it dislikes. City officials counter that the ordinances are necessary to control unlawful behavior.
Many Supreme Court observers expected the Court to clarify the meaning of prompt judicial review in City News & Novelty v. City of Waukesha, a 2001 case involving an adult bookstore in Wisconsin. However, the Court determined that the case was moot.
Some also thought that the Court might decide the “prompt judicial review” decision in the park-permit case Thomas v. Chicago Park District. However, in January 2002, the Court decided the case without addressing the question.
The Supreme Court finally answered the question regarding prompt judicial review in its June 7, 2004, decision in City of Littleton v. Z.J. Gifts. The case concerned a battle between city officials in Littleton, Colo., and an adult business over the constitutionality of the city’s licensing law.
The city of Littleton contended that its adult-business license ordinance was merely a content-neutral, time, place and manner restriction on speech. The city asserted that First Amendment rights were safeguarded by allowing litigants a judicial forum in which to appeal adverse licensing decisions.
The business owner countered that prompt judicial review must mean a prompt judicial determination on the merits in order to prevent the dangers of censorship inherent in adult-business licensing decisions. The business owner said the city’s licensing law was not content-neutral because it targeted adult businesses for the content of their expressive materials.
In 2002, a three-judge panel of the 10th U.S. Circuit Court of Appeals had ruled that the city’s law was unconstitutional because it failed to provide for prompt judicial review. On appeal, the U.S. Supreme Court reversed 9-0, finding Littleton’s law constitutional. Interestingly, the Court said that prompt judicial review must include a prompt judicial decision on the merits. However, the Supreme Court ruled that Littleton’s city law did not have to include specific time limits for a court decision. According to the Court, ordinary procedural rules in state courts should suffice to ensure a prompt judicial ruling.
“In our view, Colorado’s ordinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly,” Justice Stephen Breyer wrote for the Court. “And whether the courts do so is a matter normally fit for case-by-case determination rather than facial challenge.”
“The decision cleared up a gaping ambiguity left by Freedman v. Maryland andFW/PBS v. Dallas with respect to what the Court meant by the requirement of prompt judicial review,” Benjamin Bull, chief counsel for the Alliance Defense Fund told the First Amendment Center Online. “It is clearly a victory for the city side of things.”
Some First Amendment advocates fear that Littleton will embolden city regulators to attack adult bookstores even more. “This is definitely a defeat for the First Amendment,” said New York-based attorney Michael A. Bamberger, who authored an amicus brief in support of Z.J. Gifts on behalf of several trade associations, including the American Booksellers Foundation for Free Expression. “Breyer’s opinion doesn’t provide any way to guarantee prompt judicial determination in a prompt manner.”
Bamberger explained: “For example, if there is an order to close a bookstore, which is enforced and the bookstore is closed, the bookstore must go to the court and then file a motion for expedited treatment, which may or may not be granted. And while you may win in the end, the whole concept of Freedman,that closing down protected communications is a harmful thing even for a brief period of time, gets lost in the shuffle.”
Still, others see a few nuggets of hope in the Court’s opinion. They focus on Breyer’s language indicating that adult bookstores can attack delay in licensing decisions on a case-by-case basis. “I know a lot of people on the First Amendment side of the fence are disappointed with the result of the Court’s opinion,” said Cincinnati-based attorney Jennifer Kinsley, who authored an amicus brief in support of Z.J. Gifts on behalf of the First Amendment Lawyers Association. “But I take some hope from what was written. The issue is not over and there is still a lot of room to litigate on a case-by-case basis. Certainly, the opinion sends the message to state courts that they need to comply with the promptness requirement.”
Colorado attorney Michael Gross, who argued the case for Z.J. Gifts before the U.S. Supreme Court perhaps said it best: “We’ve been litigating the meaning of ‘review’ in ‘prompt judicial review’ for 14 years since FW/PBS. The Court ruled in our favor that ‘review’ means determination but opened the door to perhaps another 14 years of litigation over the meaning of ‘prompt.’ ”