The secondary-effects doctrine: stripping away First Amendment freedoms.

• Author: Hudson, David L., Jr.

INTRODUCTION

The secondary-effects doctrine continues to wreak havoc in First Amendment jurisprudence. Much adult entertainment litigation centers on this doctrine, the principal legal tool that enables government officials to regulate adult-oriented expression with greater ease. It lowers the level of applicable judicial scrutiny for regulations that appear to target unfavorable expression. While the doctrine applies outside of adult-oriented expression, its primary use remains as a potent tool for municipal officials to restrict adult businesses. (1)

The doctrine is important because a surprising amount of First Amendment law involves adult-oriented expression. According to one federal appeals court, "[A]dult entertainment establishments have played a disproportionately prominent role in First Amendment doctrine." (2) Although the U.S. Supreme Court has recognized that the First Amendment protects nude dancing and other forms of adult-oriented expression, the Court has used the secondary-effects doctrine to limit such expression. (3)

The doctrine provides the mechanism by which government officials receive judicial approval for running roughshod over the First Amendment rights of those who provide adult-oriented expression for consenting adults. These officials claim that they are not censoring speech because of its purported offensiveness but because the businesses cause harmful, adverse side effects--called secondary effects. Municipal incantations of increased crime and decreased property values--the two most commonly recited secondary effects--have an indelible impact on this area of law. Courts routinely uphold restrictive zoning laws, (4) bans on the sale of alcohol at adult businesses, (5) the sale of mixed drinks at strip clubs, (6) prohibitions on totally nude dancing, (7) patron-performer buffer zones, (8) open-booth requirements, (9) hours of operations restrictions, (10) stage-height provisions, (11) and others.

Simply stated, the secondary-effects doctrine allows government officials to claim that patently content-discriminatory regulations--often those that restrict only businesses featuring adult-oriented expression--are treated as content-neutral. The difference is important in First Amendment law because content-based laws are subject to a higher degree of judicial scrutiny than content-neutral laws. (12) Furthermore, the secondary-effects doctrine is easily manipulated, as government officials often advance various secondary-effect justifications. Increased crime, decreased property values, neighborhood blight, transmission of sexual diseases are simply the most common. The laundry list of other secondary-effects justifications is impressive and nearly all encompassing. (13)

Compounding the problem is that the U.S. Supreme Court has not waded into the troubled waters of the secondary-effects doctrine in the last ten years. (14) This has left the lower courts to their own devices in an intricate area of First Amendment law. As First Amendment attorneys Daniel Aronson, Gary Edinger, and James Benjamin wrote:

The present state of the law is both confused and intellectually dishonest; the federal circuits are split on issues both large and small, and the guidance offered to lower courts resembles instructions for operating a Ouija board. (15) I. BIRTH AND EXPANSION OF A DANGEROUS DOCTRINE

The U.S. Supreme Court created the doctrine in a footnote in Young v. American Mini Theatres, inc. in 1976. (16) The city of Detroit had amended its "Anti-Skid Row Ordinance" to prohibit the clustering of adult businesses so as to prevent red light districts. The law prohibited an adult business from locating within 1000 feet of any two existing adult businesses or within 500 feet of any residential area. (17)

John H. Weston, a leading First Amendment attorney who represented the adult businesses who challenged the law, explained that the city started zoning the businesses because obscenity prosecutions would fail. "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," he said. (18)

Even though the ordinance selectively targeted adult businesses that featured adult-oriented expression, a bare majority of the U.S. Supreme Court upheld the ordinance and viewed it as content-neutral. (19) By a conventional reading of First Amendment law, the Detroit law constituted a content-based law that should be subject to rigorous review. But Justice John Paul Stevens' infamous footnote revealed that the zoning law sought to limit the "secondary effect" of crime, "not the dissemination of 'offensive' speech." (20) He explained:

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." (21) In dissent, Justice Potter Stewart termed Stevens' plurality opinion in Young an "aberration" that ran "roughshod over cardinal principles of First Amendment law." (22) Stewart accused the Court of "invok[ing] a concept wholly alien to the First Amendment." (23) Stewart recognized that the Court in Young had classified a patently content-based law into a content-neutral law. In First Amendment law, content-based laws are subject to strict scrutiny, while content-neutral laws are subject to intermediate scrutiny. (24) Ten years later, the Court elevated the secondary-effects doctrine from a footnote to center stage in Renton v. Playtime Theatres, Inc. (25) The city of Renton prohibited adult theaters from locating within 1000 feet of any residential zone, church, park or school. (26)

The Court upheld a Renton, Washington, ordinance limiting the location of adult theatres even though city officials in Renton had not studied whether such businesses caused harmful secondary effects. Instead, the city officials relied on a study of nearby Seattle. The Court determined that "[t]he 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." (27)

In dissent, Justice William Brennan criticized the expansion of the secondary-effects doctrine. He noted that if adult theatres cause harmful secondary effects then a city may have a compelling interest in regulating them. However, that "does not mean ... that such regulations are content neutral." (28) He identified the city's "selective treatment" of adult theatres, noting that the evidence suggested that city officials were interested in "discriminating against adult theaters based on the content of the films they exhibit." (29) Brennan also questioned whether Renton officials could rely on the experiences of Seattle or Detroit, saying that the city "must justify its ordinance in the context of Renton's problems--not Seattle's or Detroit's problems." (30)

The secondary-effects doctrine caused enough mischief in pure zoning cases involving gentleman's clubs and adult theaters, but the Court made matters worse by using the secondary-effects doctrine to regulate the content of adult performance dancers as well. In Barnes v. Glen Theatre, Inc., the Court upheld a public nudity law that required dancers to don g-strings and pasties during their performances. (31) The Court used the four-part test from the draft card burning decision United States v. O'Brien to evaluate the public nudity law. Under the O'Brien test, a governmental restriction on speech is constitutional if (1) the government has the power to pass the law; (2) the law furthers a substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the restriction is narrowly tailored. (32)

In his concurring...