and again a decade later in 1986, the Supreme
Court considered city ordinances that attempted to
confine adult motion picture theaters to a
relatively limited (and from a standpoint of the
theater operators) undesirable portion of the
city. In Young
v American Mini Theaters (1976), the
Court upheld a Detroit zoning ordinance that
prohibited adult theaters from locating near
residential areas or within 1,000 feet of any two
other "regulated uses" (adult-oriented
businesses). The law, in practice, allowed
location only within 5% of the city--and most of
that land was not for sale or did not
provide an opportunity for a commercially viable
business. In a footnote, the Court
considered the law a legitimate effort by the city
"to preserve the character of its
neighborhoods." In City of Renton v
Playtime Theatres (1986), Renton,
Washington, enacted a zoning ordinance that
prohibited "adult motion picture theaters" from
locating near residential areas, churches, parks,
or any school. The Court found that the city
law's "predominate" intent was not to suppress
adult films, but to deal with "secondary
effects." These undesirable
"secondary effects" often
associated with a concentration of adult-oriented
prostitution, crime, lowered property values, etc.
Since the law was "content-neutral" in
the sense that it was not justified
with reference to the content of the speech, the
Court upheld the ordinance using something less
than strict scrutiny. The test employed by
the Court was that generally appicable to
content-neutral time, place, and manner
regulations. In dissent, Justice Brennan
argued that the law's limitations are "based
exclusively on the content of the films shown
there" and thus the law should have had to meet
the exacting standards applied to content-based
regulations of speech.
next case in our set of materials, Barnes v
Glen Theater, considers public nudity
in an expressive context. Specifically, the
Court considers whether Indiana can prosecute
establishments that offer nude dancers as
entertainment. Although a majority of the
Court finds the case requires a First Amendment
balancing, five members of the Court (applying the
O'Brien test) conclude that the state's
interest either in protecting morality (four
members) or preventing the harmful secondary
effects of nude entertainment establishments
(Souter, concurring) permit Indiana to enforce its
ban on public nudity against places such as the
Glen Theater and the Kitty Kat Lounge.
Souter's concurrence suggests, however, that
enforcement of a public nudity statute against a
public performance of a show such as Hair or
Equus (that includes nudity) might violate
the First Amendment.
In City of Erie v
Pap's A.M., the Court concluded that
Erie, Pennsylvania's ban on public nudity could be
enforced against erotic dancers at a place known
as "Kandyland." The law was not, the Court
said, aimed a suppressing the erotic message of
dancers but rather was an attempt, as the city
declared, to prevent the sort of "atmosphere
conducive to violence, sexual harassment, public
intoxication, prostitution, the spread of sexually
transmitted diseases and other deleterious
effects." As such, it was subject to the
O'Brien test, and not the CSI test used in cases
of content-regulation. Concurring, Justices
Scalia and Thomas scoffed at the notion that
adding G-strings and pasties would substantially
reduce the secondary effects, and would prefer
instead that the Court have rested its decision on
the right of a community to foster good
in a 5 to 4 decision in City of Los Angeles v Alameda Books
(2002), the Court upheld a law that prohibited the
establishment of more than one adult business in
the same building, again using a "secondary
effects" rationale. Justice Kennedy, who
provided the fifth vote to uphold the law, wrote a
concurring opinion in which he conceded that the
law was NOT content-neutral, but could be judged
by a less exacting standard than normally applied
to content regulations because it "was more in the
nature of a typical land-use restriction and less
in the nature of a law suppressing speech."
Four dissenters proposed calling the law "content
correlated" and found that the city lacked
sufficient evidence to show that a concentration
of two or more adult businesses in the same
building would have the adverse effects suggested.
City of Renton v Playtime Theatres (1986)*
City of Los Angeles v Alameda Books, Inc. (2002)
Public Nudity Bans
Barnes v. Glen Theater (1991)*
City of Erie v Pap's A.M (2000)
2. Should public nudity in a highbrow play be protected by the First Amendment, but not public nudity in a lowbrow bar?
3. Justice Scalia thinks that flag-burning is expressive conduct deserving First Amendment protection, but that nude dancing is not. What's the basis for his distinction?
4. Should these cases turn on whether the government's restrictions are aimed directly at the expressive elements of the conduct in question? How do we determine whether it is or isn't aimed at such elements? Should we look to statements by the government decision-makers?
5. Note that the Court cannot seem to find five members who can agree on a single approach to the secondary effects analysis. Does this set of cases also suggest that certain justices have changed their views on the subject?
6. Do you agree with Justice Kennedy in Alameda Books that even though the ordinances are "content-based" only intermediate scrutiny is appropriate?
7. Is the middle-tier test used in these cases different than that used for time, place, and manner regulations? Is it the same as the test used in O'Brien?
8. How would you analyze the constitutionality of an ordinance that imposed midnight closing times for all "sexually-oriented businesses" (including adult bookstores and theatres and nude model studios)?
9. Should a city have to demonstrate that the available zoning options for a regulated adult business offer the opportunity for the business to be commercially viable?
10. Do adult-oriented businesses necessarily produce the secondary effects identified in these cases? What if an adult business can demonstrate that it will attract a classy, polite clientele and not have the unwanted secondary effects a zoning ordinance was intended to prevent? Does the business then have a First Amendment right not to be regulated in the way that it is?