When may the state regulate constitutionally protected activity in the interests of public morality? In Barnes v. Glen Theatre, Inc., (1) City of Erie v. Pap's A.M., (2) and City of Los Angeles v. Alameda Books, Inc., (3) the Supreme Court considered First Amendment challenges to three state regulations of adult businesses. The controversial subject matter of the cases, against the backdrop of expanding First Amendment protections and changing societal mores, exposed a philosophical knot within the Court's jurisprudence. And a difficult one at that: the three cases resulted in twelve opinions authored by seven different Justices and brought into focus an unresolved tension surrounding the legitimacy of morality as a basis for lawmaking.
This Article examines the Justices' struggle to reconcile the intuitive sense that adult businesses can be detrimental to society at large with two countervailing forces: first, the common opinion that the state has no business legislating morality, and second, that the First Amendment now affords wide protection to activities once considered obscene and meriting little constitutional protection. To do this, in Section I we briefly summarize the First Amendment doctrinal framework; then, in Section II, we review in detail the cases and the opinions they generated. In Section III, we characterize the "secondary effects" doctrine that emerges from these cases as the courts attempt to resolve this tension. We then critique that attempt in Section IV, placing it in a broader philosophical context. We find that while the Court by the time of Alameda may have set too high an evidentiary barrier within the secondary effects analysis, the Court is equally justified in focusing on secondary social harms as it would be in relying on public morality. But choosing which secondary effects are harmful involves moral reasoning of the same kind as that which underpins public morality, the very doctrine secondary effects appeared designed to avoid.
We insist that although Alameda, the most recent Supreme Court case involving secondary effects, was decided in 2002, the philosophical and jurisprudential problem at the root of these cases remains, perhaps now more than ever, exceedingly relevant. A legal community that often bristles when confronted with questions of morality is more likely to accept empirical evidence in lieu of philosophical argumentation. Secondary effects thus can provide an alternative basis on which to uphold legislation enacted in the exercise of the public morality component of the police power. As we will argue, secondary effects and public morality often come to the same thing.
BACKGROUND AND CONTEXT
To fully understand the secondary effects cases, some attention must be paid to the context in which they arose--in particular, to the law of obscenity as it has developed over the course of the twentieth century. (4) Obscenity has never been protected by the First Amendment in American constitutional law. (5) States were free to regulate obscene subject matter, and the federal government did so too via the Comstock Act of 1873, (6) which prohibited the distribution of obscene materials by mail. (7) The Comstock Act, however, did not define obscenity, and it was left to the courts to determine the contours of the obscenity exception. In 1896, the Supreme Court, in upholding a conviction for distributing a pamphlet containing obscene images, endorsed a jury instruction that defined obscenity as follows:
[T]he test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influence, and into whose hands a publication of this sort may fall ... Would it ... suggest or convey lewd thoughts and lascivious thoughts to the young and inexperienced? (8) Prior to the introduction of tiers of scrutiny in First Amendment law, subject matter was either protected or unprotected under the First Amendment. (9) Thus, if a jury found a work to be obscene by the Rosen test, the work was not constitutionally protected and that was the end of the matter. For example, "[t]here was no doubt that explicit material of the type one might find today in Penthouse or Hustler magazines was clearly obscene and did not have any constitutional protection." (10) But "[f]or a period, the law was so broad that disputed obscenity cases tended to involve mildly racy passages in novels, such as James Joyce's Ulysses." (11)
This remained so until Roth v. United States, (12) which, in upholding a conviction based upon a successor statute to the Comstock Act, declared that "obscene material" is material that "deals with sex in a manner appealing to the prurient interest." (13) The Court framed the question as whether the average person, applying "contemporary community standards," would judge this to be the "dominant theme of the material ... taken as a whole." (14) Roth inaugurated a sea change in the regulation of obscenity, both doctrinally and practically. Then, in 1973, Miller v. California (15) added to the Roth test the requirement that in order to be considered obscene, subject matter had to "depict or describe patently offensive 'hard core' sexual conduct" (16) lacking "serious literary, artistic, political, or scientific value." (17) Although Miller listed some specific depictions of sexual acts that juries were permitted to find per se obscene, the subsequent introduction of tiers of scrutiny had the effect of placing even prohibitions against "hard-core" depictions in jeopardy. (18)
After Miller, the Court began to apply varying degrees of scrutiny to regulations burdening speech depending on whether the regulation specifically targeted the content of the speech or merely incidentally burdened it. (19) In general, content-based restrictions on speech are subject to strict scrutiny, which usually proves fatal to the regulation. (20) Under strict scrutiny, "the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." (21) However, content-neutral regulations that nevertheless burden speech may be analyzed under a more lenient intermediate scrutiny standard if they are merely restrictions on the time, place, and manner of the speech. (22) Under intermediate scrutiny, content-neutral restrictions "are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." (23) Relevant to our discussion of Barnes and City of Erie, expressive conduct is also treated as speech if there is an intent to convey a particularized message and a great likelihood that the message will be understood, (24) and regulations of it are subject to either type of scrutiny depending on whether the law is facially content-based or content-neutral.
The upshot of these two developments is that sexually explicit speech became significantly more difficult to regulate. (25) Prior to Roth, the states and the federal government could directly regulate adult expression on the basis of its content and seek refuge in a wide obscenity exception. (26) After Miller, the obscenity exception was significantly narrowed. At the same time, a law that burdened one type of speech specifically was likely to be labeled a content-based restriction and stricken on that basis. Obscenity prosecutions dropped off precipitously and the pornography industry grew exponentially. (27)
Secondary effects can be seen as a slight retrenchment intended to deal with the resulting constitutional arrangement. (28) Against the backdrop of severely curtailed regulatory power over obscenity, the Court, prior to Barnes, began to invoke the concept of negative "secondary effects" (29) of erotic speech--crime, disease, prostitution, decreases in neighborhood property values--to justify treating as time, place, and manner restrictions regulations that would not otherwise qualify for intermediate scrutiny. In Young v. American Mini Theatres, (30) the Supreme Court was confronted with Detroit's "Anti-Skid Row" ordinance, which prohibited adult movie theaters from operating within a certain radius of another specified adult business. (31) In upholding the ordinance as a time, place, and manner restriction, Justice Stevens, writing for a plurality of the Court, contrasted Amerian Mini Theatres with Erznoznik v. City of Jacksonville. (32) Whereas in Erznoznik the Jacksonville city government had attempted to prohibit the screening of nudity in a drive-in theater because of the actual content of the speech itself, Detroit merely wanted to protect its citizens from the harmful effects caused by concentrations of adult businesses:
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. (33) This would be the first time the Supreme Court invoked the secondary, or follow-on, effects of speech to justify treating a law as content-neutral. A majority of the Court adopted this analysis in Renton v. Playtime Theatres.34 In upholding an ordinance that paralleled Detroit's ordinance at issue in American Mini Theatres and required that adult movie theatres not be located in close proximity to one another, the Court opined that:
At first glance, the Renton ordinance, like the ordinance in American Mini Theatres, does not appear to fit neatly into either the "content-based" or the "content-neutral" category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District...