In 1977, the city of Los
Angeles conducted a comprehensive study of adult establishments and
concluded that concentrations of adult businesses are associated with
higher rates of prostitution, robbery, assaults, and thefts in
surrounding communities. Accordingly, the city enacted an ordinance
prohibiting the establishment, substantial enlargement, or transfer of
ownership of an adult arcade, bookstore, cabaret, motel, theater, or
massage parlor or a place for sexual encounters within 1,000 feet of
another such enterprise or within 500 feet of any
religious institution, school, or public park. [Later, the city
realized that its method of calculating distances created a loophole
permitting the concentration of multiple adult enterprises in a single
structure.]
Concerned that allowing an
adult-oriented department store to replace a strip of adult
establishments could defeat the goal of the original ordinance, the
city council amended § 12.70(C) by adding a prohibition on "the
establishment or maintenance of more than one adult entertainment
business in the same building, structure or portion thereof."
The Court of Appeals [held]
that, even if the Los Angeles ordinance were content neutral, the city
had failed to demonstrate, as required by the third step of the Renton
analysis, that its prohibition on multiple-use
The Court of Appeals
misunderstood the implications of the 1977 study. While the study
reveals that areas with high concentrations of adult establishments are
associated with high crime rates, areas with high concentrations of
adult establishments are also areas with high concentrations of adult
operations, albeit each in separate establishments. It was therefore
consistent with the findings of the 1977 study, and thus reasonable,
for Los Angeles to suppose that a concentration of adult establishments
is correlated with high crime rates because a
concentration of operations in one locale draws, for example, a greater
concentration of adult consumers to the neighborhood, and a high
density of such consumers either attracts or generates criminal
activity. The assumption behind this theory is that having a number of
adult operations in one single adult establishment draws the same dense
foot traffic as having a number of distinct adult establishments in
close proximity, much as minimalls and department stores similarly
attract the crowds of consumers. Under this view, it is rational for
the city to infer that reducing the concentration of adult operations
in a neighborhood, whether within separate establishments or in one
large establishment, will reduce crime rates.
Neither the Court of
Appeals, nor respondents, nor the dissent provides any reason to
question the city's theory. In particular, they do not offer a
competing theory, let alone data, that explains why the elevated crime
rates in neighborhoods with a concentration of adult establishments can
be attributed entirely to the presence of permanent walls between, and
separate entrances to, each individual adult operation. While the city
certainly bears the burden of providing
In Renton, [we held] that a
municipality may rely on any evidence that is "reasonably believed to
be relevant" for demonstrating a connection between speech and a
substantial, independent government interest. This is not to say that a
municipality can get away with shoddy data or reasoning. The
municipality's evidence must fairly support the
municipality's rationale for its ordinance. If plaintiffs fail to cast
direct doubt on this rationale, either by demonstrating that the
municipality's evidence does not support its rationale or by furnishing
evidence that disputes the municipality's factual findings, the
municipality meets the standard set forth in Renton. The city...has
complied with the evidentiary requirement
in Renton.
Justice Souter faults the
city for relying on the 1977 study not because the study fails to
support the city's theory that adult department stores, like adult
minimalls, attract customers and thus crime, but because the city does
not demonstrate that free-standing single-use adult establishments
reduce crime. In effect, Justice Souter asks the city to demonstrate,
not merely by appeal to common sense, but also with empirical data,
that its ordinance will successfully lower crime. Our cases have never
required that municipalities make such a showing, certainly not without
actual and convincing evidence from plaintiffs to the contrary. Such a
requirement would go too far in undermining our settled position that
municipalities must be given a "'reasonable opportunity to experiment
with solutions'" to address the secondary effects of protected speech.
. . . Renton requires that
municipal ordinances receive only intermediate scrutiny if they are
content neutral. There is less reason to be concerned that
municipalities will use these ordinances to discriminate against
unpopular speech.
Justice Souter would have
us rethink this balance, and indeed the entire Renton framework. In
Renton, the Court distinguished the inquiry into whether a municipal
ordinance is content neutral from the inquiry into whether it is
"designed to serve a substantial government interest and do not
unreasonably limit alternative avenues of communication." . . . Only at
[the second] stage did Renton contemplate that courts would
We think this proposal
unwise. . . . [There] is no evidence suggesting that courts have
difficulty determining whether municipal ordinances are motivated
primarily by the content of adult speech or by its secondary effects
without looking to evidence connecting such speech to the asserted
secondary effects. . . . Justice Souter does not clarify the sort of
evidence upon which municipalities may rely to meet the evidentiary
burden he would require. It is easy to say that courts must demand
evidence when" common experiences" or "common assumptions" are
incorrect, but it is difficult for courts to know ahead
of time whether that condition is met. . . .
III
Accordingly, we reverse the
Court of Appeals' judgment granting summary judgment to respondents and
remand the case for further proceedings.
I join the plurality
opinion because I think it represents a correct application of our
jurisprudence concerning regulation of the "secondary effects" of
pornographic speech. As I have said elsewhere, however, in a case such
as this our First Amendment traditions make "secondary effects"
analysis quite unnecessary. The Constitution does not prevent
those communities that wish to do so from regulating, or indeed
entirely suppressing, the business of pandering sex.
JUSTICE
KENNEDY, concurring
in the judgment.
Speech can produce tangible
consequences. It can change minds. It can prompt actions. These
primary effects signify the power and the necessity of free speech.
Speech can also cause secondary effects, however, unrelated to the
impact of the speech on its audience. A newspaper factory may cause
pollution, and a billboard may obstruct a view. These secondary
consequences are not always immune from regulation by zoning laws even
though they are produced by speech.
Municipal governments know
that high concentrations of adult businesses can damage the value and
the integrity of a neighborhood. The damage is measurable; it is all
too real. The law does not require a city to ignore these consequences
if it uses its zoning power in a reasonable way to ameliorate them
without suppressing speech. . . .
The question in this case
is whether Los Angeles can seek to reduce these tangible, adverse
consequences by separating adult speech businesses from one
another-even two businesses that have always been under the same roof.
In my view our precedents may allow the city to impose its regulation
in the exercise of the zoning authority. The city
is not, at least, to be foreclosed by summary judgment, so I concur in
the judgment.
This separate statement
seems to me necessary, however, for two reasons. First, Renton
described a similar ordinance as" content
neutral," and I agree with the dissent that the designation is
imprecise. Second, in my view, the plurality's application of Renton
might constitute a subtle expansion, with which I do not concur.
I
On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself. . . . The purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech.
A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech. It is well documented that multiple adult businesses in close proximity may change the character of a neighborhood for the worse. Those same businesses spread across the city may not have the same deleterious effects. At least in theory, a dispersal ordinance causes these businesses to separate rather than to close, so negative externalities are diminished but speech is not. . . .
The ordinance at issue in
this case is not limited to expressive activities. It also extends, for
example, to massage parlors, which the city has found to cause similar
secondary effects. This ordinance, moreover, is just one part of an
elaborate web of land-use regulations in Los Angeles, all of which are
intended to promote the social value of the land as a whole without
suppressing some activities or favoring others. All this further
suggests that the ordinance is more in the nature of a typical land-use
restriction and less in the nature of a law suppressing speech.
For these reasons, the
ordinance is not so suspect that we must employ the usual rigorous
analysis that content-based laws demand in other instances. The
ordinance may be a covert attack on speech, but we should not presume
it to be so. In the language of our First Amendment doctrine it calls
for intermediate and not strict scrutiny, as we held in
Renton.
II
In Renton, . . . the Court
designated the restriction" content neutral." The Court appeared to
recognize, however, that the designation was something of a fiction,
which, perhaps, is why it kept the phrase in quotes. After all, whether
a statute is content neutral or content based is something that can be
determined on the face of it; if the statute describes speech by
content then it is content based. And the ordinance
Nevertheless, for the
reasons discussed above, the central holding of Renton is sound: A
zoning restriction that is designed to decrease secondary effects and
not speech should be subject to intermediate rather than strict
scrutiny. Generally, the government has no power to restrict speech
based on content, but there are exceptions to the rule. See Simon &
Schuster (Kennedy, J., concurring in judgment). And zoning regulations
do not automatically raise the specter of impermissible content
discrimination, even if they are content based, because they have a
prima facie legitimate purpose: to limit the negative externalities of
land use. . . . The zoning context provides a built-in legitimate
rationale, which rebuts the usual presumption that content-based
restrictions are unconstitutional. For this reason, we apply
intermediate rather than strict scrutiny.
III
The narrow question
presented in this case is whether the ordinance at issue is invalid
"because the city did not study the negative effects of such
combinations of adult businesses, but rather relied on judicially
approved statutory precedent from other jurisdictions." This question
is actually two questions. First, what proposition does a city need to
advance in order to sustain a secondary-effects ordinance? Second, how
much evidence is required to support the proposition? The plurality
skips to the second question and gives the correct answer; but
in my view more attention must be given to the first. At the outset, we
must identify the claim a city must make in order to justify a
content-based zoning ordinance. As discussed above, a city must advance
some basis to show that its regulation has the purpose and effect of
suppressing secondary effects, while leaving the quantity and
accessibility of speech substantially intact. The ordinance may
identify the speech based on content, but only as a shorthand for
identifying the secondary effects outside. A city may not assert that
it will reduce secondary effects by reducing speech in the same
proportion. On this point, I agree with Justice Souter. . . .
. . . The plurality's
analysis does not address how speech will fare under the city's
ordinance. . . . It is no trick to reduce secondary effects
The analysis requires a few
more steps. If two adult businesses are under the same roof, an
ordinance requiring them to separate will have one of two results: One
business will either move elsewhere or close. The city's premise cannot
be the latter. It is true that cutting adult speech in half would
probably reduce secondary effects proportionately. But again,
a promised proportional reduction does not suffice. Content-based taxes
could achieve that, yet these are impermissible.
The premise, therefore,
must be that businesses-even those that have always been under one
roof- will for the most part disperse rather than shut down. True, this
premise has its own conundrum. As Justice Souter writes, "the city . .
. claims no interest in the proliferation of
adult businesses." The claim, therefore, must be that this ordinance
will cause
two businesses to split rather than one to close, that the quantity of
speech will be substantially undiminished, and that total secondary
effects will be significantly reduced. This must be the rationale of a
dispersal statute.
Only after identifying the
proposition to be proved can we ask the second part of the question
presented: is there sufficient evidence to support the proposition? As
to this, we have consistently held that a city must have latitude to
experiment, at least at the outset, and that very little evidence is
required. . . . In this case the proposition to be shown is supported
by a single study and common experience. The city's study shows a
correlation between the concentration of adult establishments and
crime. Two or more adult businesses in close proximity seem to attract
a critical mass of unsavory characters and the crime rate may increase
as a result. The city, therefore, sought to disperse these businesses.
This original ordinance is not challenged here, and we may assume that
it is constitutional.
If we assume that the study
supports the original ordinance, then most of the necessary analysis
follows. We may posit that two adult stores next door to each other
attract 100 patrons per day. The two businesses split apart might
attract 49 patrons each. (Two patrons, perhaps, will be discouraged by
the inconvenience of the separation - a relatively small cost to
speech.) On the other hand, the reduction in secondary effects might be
dramatic, because secondary effects may require a critical mass.
Depending on the economics of vice, 100 potential customers/victims
might attract a coterie of thieves, prostitutes, and
are discouraged by the inconvenience of two-stop shopping, another two
are encouraged by hospitable surroundings. In that case, secondary
effects might be eliminated at no cost to speech whatsoever, and both
the city and the speaker will have their interests well served.
Only one small step remains to justify the ordinance at issue in this case. The city may next infer-from its study and from its own experience - that two adult businesses under the same roof are no better than two next door. . . . If the city's first ordinance was justified, therefore, then the second is too. Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little.
IV
These propositions are well
established in common experience and in zoning policies that we have
already examined, and for these reasons this ordinance is not invalid
on its face. If these assumptions can be proved unsound at trial, then
the ordinance might not withstand intermediate scrutiny. The ordinance
does, however, survive the summary judgment motion that the Court of
Appeals ordered granted in this case.
JUSTICE
SOUTER, with whom
JUSTICE STEVENS and JUSTICE GINSBURG join, and with whom JUSTICE BREYER joins
as to Part II, dissenting. . . .
This ordinance stands or
falls on the results of what our cases speak of as intermediate
scrutiny, generally contrasted with the demanding standard applied
under the First Amendment to a content-based regulation of expression.
The variants of middle-tier tests cover a grab-bag of restrictive
statutes, with a corresponding variety of justifications. . . . It is
worth being clear [on] how close to a content basis adult business
zoning can get, and why the application of a middle-tier
care....
The comparatively softer
intermediate scrutiny is reserved for regulations justified by
something other than content of the message, such as a straightforward
restriction going only to the time, place, or manner of speech or other
expression. . . . [One] middle-tier variety is zoning restriction as a
means of responding to the "secondary
effects" of adult businesses, principally crime and declining property
values in the neighborhood.
Although this type of
land-use restriction has even been called a variety of time, place, or
manner regulation, equating a secondary-effects zoning regulation with
a mere regulation of time, place, or manner jumps over an important
difference between them. A restriction on loudspeakers has no obvious
relationship to the substance of what is broadcast, while a zoning
regulation of businesses in adult expression just as obviously does.
And while it may be true that an adult business is burdened only
because of its secondary effects, it is clearly burdened only if its
expressive products have adult content. Thus, the Court has recognized
that this kind of regulation, though called content neutral, occupies a
kind of limbo between full-blown, content-based restrictions and
regulations that apply without any reference to the substance of what
is said.
It would in fact make sense
to give this kind of zoning regulation a First Amendment label of its
own, and if we called it content correlated, we would not only describe
it for what it is, but keep alert to a risk of content-based regulation
that it poses. The risk lies in the fact that when a law applies
selectively only to speech of particular content, the more precisely
the content is identified, the greater is the opportunity for
government censorship. Adult speech refers not merely to sexually
explicit content, but to speech reflecting a favorable view of being
explicit about sex and a favorable view of the practices it depicts; a
restriction on adult content is thus also a restriction turning on a
particular viewpoint, of which the government may disapprove.
This risk of viewpoint
discrimination is subject to a relatively simple safeguard, however. If
combating secondary effects of property devaluation and crime is truly
the reason for the regulation, it is possible to show by empirical
evidence that the effects exist, that they are caused by the expressive
activity subject to the zoning, and that the zoning can be expected
either to ameliorate them or to enhance the capacity of the
In examining claims that
there are causal relationships between adult businesses and an increase
in secondary effects (distinct from disagreement), and between zoning
and the mitigation of the effects, stress needs to be placed on the
empirical character of the demonstration available. The weaker the
demonstration of facts distinct from disapproval of the "adult"
viewpoint, the greater the likelihood that nothing more than
condemnation of the viewpoint drives the regulation. Equal stress
should be placed on the point that requiring empirical
justification of claims about property value or crime is not demanding
anything Herculean. Increased crime, like prostitution and muggings,
and declining property values in areas surrounding adult businesses,
are all readily observable, often to the untrained eye and certainly to
the police officer and urban planner. These harms can be shown by police
reports, crime statistics, and studies of market value, all of which
are within a municipality's capacity or available from the distilled
experiences of comparable communities. . . .
The lesson is that the
lesser scrutiny applied to content-correlated zoning restrictions is no
excuse for a government's failure to provide a factual demonstration
for claims it makes about secondary effects; on the contrary, this is
what demands the demonstration. In this case, however, the government
has not shown that bookstores containing viewing booths, isolated from
other adult establishments, increase crime or produce other negative
secondary effects in surrounding neighborhoods, and we are thus left
without substantial justification for viewing the city's First
Amendment restriction as content correlated but not simply content
based. By the same token, the city has failed to show any causal
relationship between the breakup policy and elimination or regulation
of secondary effects.
II
. . . [The city] apparently
assumes that a bookstore selling videos and providing viewing booths
produces secondary effects of crime, and more crime than would result
from having a single store without booths in one part of town and a
video arcade in another. But the city neither says this in so many
words nor proffers any evidence to support even the
whatever.
The inescapable point is that the city does not even claim that the 1977 study provides any support for its assumption. . . . And even if splitting viewing booths from the bookstores that continue to sell videos were to turn some customers away (or send them in search of video arcades in other neighborhoods), it is nothing but speculation to think that marginally lower traffic to one store would have any measurable effect on the neighborhood, let alone an effect on associated crime that has never been shown to exist in the first place. . . .
. . . Whereas Young and
Renton gave cities the choice between two strategies when each was
causally related to the city's interest, the plurality today gives Los
Angeles a right to "experiment" with a
First Amendment restriction in response to a problem of increased crime
that the city has never even shown to be associated with combined
bookstore arcades standing alone. But the government's freedom of
experimentation cannot displace its burden under the intermediate
scrutiny standard to show that the restriction on speech is no greater
than essential to realizing an important objective, in this case
policing
crime. Since we cannot make even a best guess that the city's breakup
policy will have any effect on crime or law enforcement, we are a very
far cry from any assurance against covert content-based regulation.
And concern with
content-based regulation targeting a viewpoint is right to the point
here, as witness a fact that involves no guesswork If we take the
city's breakup policy at its face, enforcing it will mean that in every
case two establishments will operate instead of the traditional one.
Since the city presumably does not wish merely to multiply adult
I respectfully dissent.