|
LAND USE RESTRICTION vs. FREE SPEECH PROTECTION (posted 5-15-02) The U.S. Supreme Court had a hard time with Alameda Books, Inc.'s challenge of Los Angeles' zoning regulations limiting adult entertainment businesses. No 5 justices could agree, so there is no majority opinion. The vote went 4 to 1 to 3.5. But it is hot off the press, having just been decided May 13, 2002. I find it interesting when a group of people look at the exact same facts and yet characterize them differently. Case in point: in this case Justice O'Connor wrote: "In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments...." But Justice Souter described it like this: "In 1977, the city of Los Angeles studied sections of the city with high and low concentrations of adult business establishments catering to the market for the erotic." Now that's a little more literary and descriptive. Dallas has the Northwest Highway/Bachman Lake area. Los Angeles has....Hollywood. This 1977 study conducted by L.A. concluded that concentrations of adult businesses were somehow connected with higher rates of prostitution, robbery, assaults and thefts in surrounding communities. Justice Kennedy describes the conclusion like this: "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." O'Connor says "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." To combat these negative consequences, the city adopted an ordinance that prohibited the establishment, substantial enlargement, or transfer of ownership of an adult entertainment facility within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park. The ordinance directed that distances be measured in a straight line from the closest exterior structural wall of each business. At this point the land use lawyers for the adult entertainment facilities were wearing wide grins, because they realized this created a huge loophole that allowed the concentration of multiple adult enterprises in a single location, like a retail strip center or shopping mall. Imagine moving the businesses around Bachman Lake into Northpark Mall, replacing anchors like Neiman Marcus with Baby Dolls, and smaller stores like Nine West with Condoms to Go and half of Deep Ellum. I suppose Victoria's Secret could stay if they added live models. Well, that thought didn't sit well with Los Angeles, so it amended its ordinance to also prohibit the establishment or maintenance of more than one adult entertainment business in the same building, structure, or portion thereof. Then, in 1995, a city building inspector found that Alameda Books was operating two adult entertainment businesses at one location, in violation of the ordinance. One business rented and sold adult videotapes and books. The other was a "video arcade" where patrons could rent booths and watch videotapes for a fee. Alameda's loophole lawyers quickly referred the case to their trial lawyer buddy, who beat L.A. to the punch by filing a lawsuit against the city to prevent enforcement of the ordinance. Alameda Books admitted that it ran these two businesses, and admitted that it was in violation of the ordinance. But Alameda argued that video arcades cannot practically function as stand-alone businesses. They must be combined with some other adult business such as a video rental store (presumably for access to an inventory of tapes to watch in the arcade). Alameda Books then stretched this argument to conclude that Los Angeles was using this regulation to suppress its rights to free speech, that the real intent of the zoning regulation was to put arcades out of business. This would be illegal because zoning cannot target businesses based on their content, when that content is free speech. The group of four justices-herein the Major 4-plus Justice Kennedy, who was a Lone Ranger in this case, determined that this zoning regulation was not intended to restrict free speech, but rather was intended to address the secondary effects that seemed to accompany adult entertainment venues. Justice Kennedy said it best-speech can cause secondary effects that are unrelated to the impact of the speech on the audience. For example, a newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not immune from zoning regulations even though they are a byproduct of speech. The city cannot regulate the speech just because the city doesn't like the particular type of speech. But the city can impose zoning that will affect secondary consequences such as higher crime rates and lower property valuations of the neighborhoods. In Dallas the adult entertainment clubs highly concentrated along Northwest Highway in the Bachman Lake area have recently proposed a settlement with the city of Dallas, to resolve what has become years of contentious litigation over their location. The proposal is not a dispersion of the establishments throughout the city, but rather a move in bulk to the Stemmons Restaurant Row corridor. It will be interesting to see what effect, if any, this case has on those negotiations. Los Angeles
v. Alameda Books, Inc., U. S. Supreme Court, Case No. 00-799, Decided
May 13, 2002. Close
Window |