I don't choose the cases the Supreme Court hears, I just report them. So the fact that today's case involves smut yet again says more about the lonelinesses and hungers of the average Supreme Court law clerk than anything else. So far this term the Rehnquist Court has yet to meet a nipple it doesn't like.

City of Los Angeles v. Alameda Booksdiffers from last week's porn case in that it addresses the geography—rather than the nature—of porn. Since 1976, when the Supreme Court decided Young v. American Mini Theatres, cities have been allowed to regulate adult bookstores, theaters, and clubs through zoning. The court permitted them to do so via a highly porous exception to the free-speech laws known as the "secondary effects doctrine." While municipalities cannot pass laws based on the sexual content of speech, the secondary effects doctrine allows cities to zone sex shops and peep shows based on the effects such establishments may have on the larger neighborhood. Critics have decried the doctrine as a legal fiction, but the courts have usually allowed the doctrine to stand. In fact, it's been expanded from zoning cases to regulate all sorts of speech, and secondary effects are no longer limited to "there goes the neighborhood" effects, but also include crime, employment discrimination, noise, voter confusion, panhandling, signal bleed, and other evils.

If you think about it, some of the political speech we have held most constitutionally precious—flag burning, the right to wear jackets with inflammatory slogans, the right to burn a cross on your neighbor's lawn—might all have been regulated if you thought too long or too hard about their secondary effects (respectively: possibility of catching one's pants on fire, affronting small children, neighbors thinking you're a moron). Still, the doctrine lives on. Governments that cite "secondary effects" usually have to produce some empirical evidence of such effects, even if it's a study done by some other city. When Los Angeles enacted a zoning law in 1978, prohibiting adult businesses from operating within 1,000 feet of another such business, or within 500 feet of a school, park, or place of worship, the city cited its own 1977 study showing that accumulations of adult sex businesses led to "blighting results" on the community. But when L.A. amended that law in 1983 to prohibit "multiple-use adult bookstores" (i.e., bookstores that also show videos), it relied on the same 1977 study. Unfortunately, the 1977 study never examined whether bookstores that also show videos create the same accumulated effects as a separate bookstore and theater.

Two bookstores were found to be in violation of the statute, since they both sell adult videos and feature arcades, offering patrons the opportunity to "preview" videos in viewing booths. The bookshops sued and won in the district court and again in the 9^th Circuit Court of Appeals on the grounds that the city failed to provide sufficient evidence that multiple-use adult businesses cause the same secondary effects as multiple separate businesses. The Supreme Court, which has been wrestling with the secondary effects doctrine for some time, granted cert., presumably to help clarify how much evidence of harmful secondary effects is necessary before a city may use it as a pretext to regulate the sex industry.

To clarify: Assuming that A equals the standard universal unit of adult entertainment, the question before the court is whether having 2A in the same store is equivalent to having 2A in the larger community, assuming always that 2A=D, with D being equal to the deterioration of the neighborhood. I believe it was Jefferson who first said that the problem with the First Amendment is that there isn't enough math in it.

Michael Klekner is deputy city attorney for the city of Los Angeles, although Justice Scalia immediately mixes up his clients. "Your clients did not open ... " Scalia begins. Then he corrects himself. "I'm sorry, I'm sorry."

"My clients are innocent!" laughs Klekner.

Justice Ginsburg points out that not only did the 1977 study in question not address the issue of the combined bookstore-arcade, but also the two were actually lumped together in that study. Ginsburg shows a rather touching sensitivity to the hardworking smut purveyor when she further points out that bookstores and arcades could not viably stay in business were they not combined in this manner.

Justice Breyer queries how one could argue that a 5,000-cubic-foot bookshop or a 5,000-cubic-foot arcade is permissible, but not 5,000 cubic feet of both. Klekner replies that the "farmers market type effects" (overpriced organic jams?) require dispersal. Breyer feels this to be unresponsive and re-asks his question. Klekner replies that Los Angeles decided that a "Wal-Mart of bookstores" would be OK, because size doesn't matter, and elected to protest instead against the dangers of "assembled smaller stores."

Justice O'Connor, taking a page from the Jesse Jackson playbook, gets jiggy with a new catchphrase: The 1977 study, she points out, addressed "concentration, not combination." Further, she argues, what if the city ban had said you can't sell adult VHS tapes and adult beta tapes at the same store? "Can you break it down any way you want?" she asks.