By David L. Hudson Jr., First Amendment Scholar
September 13, 2002
Government officials often target businesses that offer adult entertainment, believing that disrobing dancers or adult videos are offensive in nature. But, the U.S. Supreme Court has determined that the First Amendment protects much adult expression that is not obscene and does not involve children.
In other words, the First Amendment prohibits government regulators from shutting down adult entertainment simply because they dislike it. For this reason, government officials rely on the so-called secondary-effects doctrine.
This doctrine, which arose out of adult business zoning cases, provides that government officials have greater leeway to regulate adult businesses if they are concerned with the harmful side effects allegedly associated with these businesses — such as increased crime and prostitution and decreased property values.
The secondary-effects doctrine has proven to be fertile ground for abuse because it enables government officials to conceal their thinly disguised dislike for adult entertainment behind claims of harmful effects. In 1988 Justice William Brennan warned in his dissent in Boos v. Berry that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.”
The secondary-effects doctrine has been applied in cases far removed from issues relating to the land-use regulation of adult businesses. For example, a federal judge in Kentucky recently used the secondary-effects rationale to uphold the constitutionality of a public high school dress code, determining that the code was really aimed at the “secondary effects of student dress,” such as gang activity, violence and inability to identify campus visitors (Long v. Board of Education of Jefferson County, 2000).
The doctrine threatens to undermine existing First Amendment free-speech jurisprudence. For this reason, First Amendment expert Robert O’Neil classifiesPap’s A.M. as the “most disappointing First Amendment decision decided by the court in the last two years.” 1
Ken Paulson, former executive director of the First Amendment Center, noted that “the decision is troubling because it took a short cut that threatens freedom of speech well beyond the confines of a topless bar.”
A major question as yet unanswered by the Supreme Court is what level of proof of secondary effects is required by the Constitution. Lower courts have widely varying requirements for the amount of secondary-effects evidence municipalities must provide in order to justify restrictions on nude-dancing establishments.
Development of the secondary-effects doctrine
Most restrictions on adult entertainment are now justified by the secondary-effects doctrine. Municipalities claim they are targeting adult-entertainment establishments not because they wish to suppress free expression, but because they are concerned with the adverse effects allegedly associated with adult businesses.
Cities have traditionally used one of two methods to curtail the harmful effects of adult businesses: They either disperse the adult businesses to locations throughout the city or they relegate them to a certain area. For example, many ordinances prohibit adult businesses from locating within a certain distance from churches, schools or from other adult businesses. Other ordinances confine adult businesses to certain zoning areas, thereby ensuring that such businesses will not open in residential or other areas.
The reach of the secondary-effects doctrine has extended even further than determining the geographic location of adult businesses. In the 1991 U.S. Supreme Court decision Barnes v. Glen Theatre, Justice David Souter extended the secondary-effects rationale to cover the content of nude dancing.
The secondary-effects doctrine also has been used to restrict commercial speech and political speech. Some secondary effects cited by government officials include noise, security problems, reduced privacy, appearances of impropriety, employment discrimination, negative effects of gambling, competition in the video-programming market, sexual arousal of readers and harm to children.
Young v. American Mini Theatres
The secondary-effects doctrine had its beginnings in the land-use regulation of adult businesses. The Supreme Court first articulated the doctrine in its 1976 decision Young v. American Mini Theatres.
The lawsuit that led to the Young decision came about when the city of Detroit amended its “Anti-Skid Row Ordinance” to provide zoning limitations for adult businesses. The ordinance provided that no adult business could be located within 1,000 feet of any two existing adult businesses or within 500 feet of any residential area.
The theater that challenged the law contended that the zoning ordinance was a content-based law that targeted businesses because officials did not like the expressive messages conveyed by the adult material displayed there.
The Supreme Court reasoned that the law was not passed to silence offensive expression but to prevent the deterioration of neighborhoods. In a footnote, Justice John Paul Stevens characterized such neighborhood deterioration as a “secondary effect.” He wrote:
“The Common Council’s determination was that a concentration of adult movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive speech.’”
Legal commentators criticized the decision because the Court’s majority characterized the zoning ordinance as content-neutral, even though it singled out adult theaters. John Weston, a First Amendment lawyer who argued theYoung case before the Supreme Court on behalf of the adult theaters, said the case represented “the first chink in the armor.”
“During depositions in the case, the government attorneys basically admitted that they were turning to zoning because they couldn’t get obscenity convictions against the theater owners,” Weston said in an April 3, 2001, telephone interview.
City of Renton v. Playtime Theatres
The city of Renton, Wash., a small town near Seattle, passed an adult-business zoning law in 1981 that prevented adult businesses from locating within 1,000 feet of any residential area, school, park or church. Two adult businesses challenged the law on First Amendment grounds.
The plaintiffs argued that the city had passed the law without conducting any research to determine whether adult businesses in fact had any harmful effects on the surrounding community. Instead, Renton leaders relied on the experience of other cities, including Seattle. The plaintiffs claimed this proved the law was passed because of a dislike for the expressive material involved.
The Supreme Court upheld the zoning law in 1986 in Renton v. Playtime Theatres, concluding that “our result is largely dictated by our decision in Young.” The majority noted that the zoning law did not closely resemble a content-neutral law. However, the Court ruled that a seemingly content-based law can be considered a content-neutral law for constitutional purposes if the aim of the law was to address harmful secondary effects. The Court wrote:
“To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at ‘adult motion picture theaters,’ but rather at the secondary effects of such theaters in the surrounding community.”
The Court determined the regulation to be content-neutral, even though the zoning law regulated theaters based on the content of their films.
Under this analysis, such a regulation must serve a substantial governmental interest and must not unreasonably limit alternative avenues of communication.
This inquiry remains vital in adult-entertainment zoning litigation. The cases often revolve around how many potential sites are available for prospective adult business owners in the city. The courts will find a challenged zoning ordinance unconstitutional unless a minimum number of sites exist where adult businesses can set up or relocate.
In his dissent, Justice Brennan criticized the majority’s determination that the zoning law was content-neutral. He wrote that, while the city of Renton may well have had a compelling interest in combating harmful secondary effects, it “does not mean that such regulations are content-neutral.”
The majority in Renton also determined that a city does not have to conduct its own study to justify its reliance on the secondary-effects argument. “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.”
Thus, the Court ruled that the city of Renton was not required to conduct its own study of secondary effects. Most courts do require, however, that a city at least consider secondary effects at the time an ordinance is passed rather than using them as a post-hoc, or after-the-fact, rationale.
Extension of the secondary-effects doctrine
After Young and Renton, cities passed numerous zoning laws regulating the location of adult businesses. Cities also enacted further restrictions regulating the content of nude dancing.
The Supreme Court extended the secondary-effects doctrine from its original context to include direct attacks on expression — i.e., regulation of the content of nude dances. One expert describes the process of extending the secondary-effects rationale beyond the land-use scenario as “using football rules in a hockey game.” 2 This process began with Justice Souter’s concurring opinion inBarnes.
Souter considered that the general public-nudity law was not related to the suppression of free expression but was designed to address harmful secondary effects. Souter extended — and, many believe, overextended — the secondary-effects rationale by applying it to a direct attack on free expression.
The extension of the secondary-effects rationale was significant, because Youngand Renton were both zoning cases focusing on the location of adult businesses.Barnes, on the other hand, involved a direct restriction on the nature of exotic dancing. Souter wrote that the secondary-effects rationale justified the Indiana law, even though “it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute.”
Attorney Weston says that many adult-entertainment lawyers were “horrified” at Souter’s opinion for many reasons. “The opinion showed a fundamental misconception about secondary effects,” Weston said in the April 2001 telephone interview. “Souter basically extended a time, place and manner concept into a direct attack on free expression.”
City of Erie v. Pap’s A.M.
In 2000 the U.S. Supreme Court considered another First Amendment challenge to a law that prohibited totally nude dancing. After the Barnesdecision, the city of Erie, Pa., passed a law that targeted public nudity.
The Court upheld this law in City of Erie v. Pap’s A.M., saying it was nearly “identical” to the Indiana law in Barnes. This time the majority adopted Justice Souter’s secondary-effects rationale in Barnes as its justification: “We conclude that Erie’s asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing.”
The majority did note that Kandyland (the adult business challenging the law) “had ample opportunity to contest the council’s findings about secondary effects before the council itself, throughout the state proceedings, and before this Court.”
This last point might be a small nugget of hope for lawyers representing adult businesses, because the opinion could be read to require a city to allow prospective adult businesses to prove that businesses of their sort do not cause certain harmful secondary effects. Weston, who argued the case before the Supreme Court, told firstamendmentcenter.org that at least the Court did away with what he called “Rehnquist’s morality justification in Barnes.” He said, “At least under Pap’s, we can attack the validity of the underlying proof by showing that these businesses do not cause adverse secondary effects.”
Interestingly, both Justice Stevens, who first used the term “secondary effects” in Young, and Justice Souter, who extended the secondary-effects doctrine beyond zoning cases in Barnes, dissented in Pap’s A.M.
Stevens deplored the extension of the secondary-effects doctrine beyond its original application in zoning cases. He wrote:
“Far more important than the question (of) whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the secondary effects of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech.”
Stevens asserted that “the Court’s use of the secondary effects rationale to permit a total ban has grave implications for basic free-speech principles.”
Justice Souter also dissented in Pap’s, saying that he had made an error in his concurrence in Barnes when he said that a governmental entity did not need localized proof of secondary effects. He wrote:
“I may not be less ignorant of nude dancing that I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted.”
Current secondary-effects jurisprudence
Today the secondary-effects rationale dominates First Amendment jurisprudence in the adult-entertainment context. Attorneys on both sides present expert witnesses and studies showing either the evidence (or lack thereof) regarding secondary effects.
Bruce McLaughlin, a Florida-based land-use planner who has analyzed numerous secondary-effects studies, identifies two “primary problems” with these studies, which usually are conducted by a government employee. “First of all, there are a group of studies that show no evidence of secondary effects,” he said in a March 6, 2001, telephone interview. “However, these studies get lost in the shuffle and are buried or ignored.”
McLaughlin also said that “there is an incestuous relationship among the various studies.” He claimed that many of the government studies were not independent. McLaughlin has conducted 40 of his own studies which show virtually no evidence of adverse secondary effects caused by various adult businesses. For example, he said his examination of police logs showed a greater number of police calls to other businesses than to adult-oriented businesses.
A study cited in a recent 11th U.S. Circuit Court of Appeals decision appears to support McLaughlin’s point. In 1997 the Fulton County, Ga., police department completed a study in which it examined the number of times during a two-year period that police were called to businesses serving alcohol.
The study concluded that the police received a greater number of calls from “regular” businesses that served alcohol — such as bars and restaurants — than from adult-entertainment establishments that served alcohol. The 11th Circuit cited this study as evidence that Fulton County did not have sufficient evidence of harmful secondary effects to prohibit the sale of alcohol at nude-dancing businesses (Flanigan’s Enterprises, Inc. v. Fulton County, 2001).
The court concluded in Flanigan’s Enterprises v. Fulton County that the county “may not ban nude dancing in establishments licensed to sell liquor without any factual basis to support the claim that these establishments are connected with negative secondary effects.”
McLaughlin called this a “watershed case that could lead us toward a move in the right direction.”
In June 2002, the Supreme Court decided another secondary-effects case involving adult businesses, City of Los Angeles v. Alameda Books.
The case involved a Los Angeles ordinance prohibiting a single adult establishment from functioning as both an adult bookstore and an adult arcade showing adult films.
In 1983, the city passed an amendment banning so-called “multiple-use” adult businesses without showing any evidence that these types of businesses caused any harmful effects. Instead, the city relied on a study — done six years earlier — that examined the harmful effects of having many adult businesses in a single area.
The 9th Circuit struck down the amendment prohibiting multiple-use adult businesses. However, the court said it was unclear what level of proof government officials must have of secondary effects in order to regulate adult businesses.
Attorney Weston, who argued the Alameda Books case before the Supreme Court, said the city had absolutely no evidence of secondary effects and relied on an outdated study. Weston and other lawyers for adult-entertainment businesses argued that the standard nude-dancing club is an upscale gentleman’s club that simply does not cause adverse secondary effects.
The Supreme Court reversed the 9th Circuit’s grant of summary judgment to the bookstores, reasoning that “it is rational for the city to infer that reducing the concentration of adult businesses in a neighborhood, whether within separate establishments or in one large establishment, will reduce crimes.”
The effect of Alameda Books will be closely watched. The city’s backers emphasize that the Supreme Court sided with them and reversed the summary judgment award to the bookstores. On the other hand, some free-speech advocates took some solace in that the Court’s chief opinion could garner only four justices, rather than the five necessary to make it a majority opinion.
It will take future litigation, including further proceedings in the Alameda Books case itself, to clarify the Court’s ruling. There can be little doubt that more legal disputes will arise regarding the secondary-effects doctrine.
1 Telephone interview with Robert O’Neil, March 5, 2001
2 Telephone interview with Bruce McLaughlin, March 6, 2001