Regulation of Sexually-Oriented Businesses and the "Secondary Effects" and "O'Brien" Tests
The issues: Can the state punish public nudity, even when in an expressive context?  Does concern about the "secondary effects" of certain adult-oriented businesses justify zoning restrictions or outright bans on such operations?

In 1976 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 businesses included 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.

The 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 morals. 

Finally, 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.


Zoning Restrictions
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)


1.  Should regulation of nude dancing be subject to a First Amendment analysis?  What are nude dancers saying?  Is nude dancing more clearly "speech" than ballroom dancing or aerobics?
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?



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