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 9th 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.
Justice Ginsburg hypothesizes the perfect little yuppie sex-shop—the Borders of sex—by asking: “In bookstores, you can browse around, go have coffee, go to the record store, listen …” She adds that the adult-bookstore/arcade “seems like a natural combination.” Klekner replies that the books, toys, and novelties are all shrink-wrapped. You can’t “have a Starbucks” and enjoy them.
When Klekner argues that there’s no difference between combining two side-by-side sex shops into a superstore and allowing a small store to provide two services, Justice Souter accuses him of “playing with words.” He says that two enterprises on the same block will “do everything they can to attract patrons,” but that a unitary store cannot create that sort of secondary effect. He adds that whether you go to the bookshop, buy a shrink-wrapped magazine, and put it in a bag, or go there to watch a video, “you leave in the same frame of mind.” When Klekner points out that there are 60 video clips to choose from, Souter insists: “Maybe magazine covers are dull … I thought they were pretty racy.”
John Weston defends the two bookstores in question, not only from Los Angeles’ zoning law, but from Scalia’s first question, in which he characterizes the shops as being “involved in sex pandering activity.” “You’ll pardon me for not adopting the court’s phrasing regarding the nature of this business,” Weston offers. Then he and Scalia engage in a lengthy and confusing debate over whether 49 percent or 51 percent of one’s stock in trade need to be “adult” in order to characterize a business as an adult business. To Weston’s credit he gets through it by rope-a-doping the judge, weathering several snarky rejoinders and two sarcastic comebacks without backing down. Following a long colloquy with Breyer and Justice Kennedy, Christmas comes a little early for Weston. Scalia cuts in to admit: “I reviewed the footnotes … you were right.” Weston’s face lights up like an unconstitutional crèche scene, as he sputters: “Thank you Justice Scalia, I’m going home now.” He pauses. “This is a memorable day.”
Sadly, it’s not much of a memorable day for the secondary effects doctrine, which doesn’t get as much attention as was expected. Scalia asks how a blockful of video stores, movie houses, and massage parlors differs from a massive unitary “Adult Inc.” Weston tries to argue that bad secondary effects are limited to when a neighborhood has “soup kitchens, rescue missions, adult book stores, and even [Scalia’s] excellent idea of the Adult Emporium.” All of which, he says, “signals the decline of a neighborhood.”
The current situation is more like a 7-Eleven, he argues, which sells “bananas … rutabagas … Coca-Cola.” (Maybe they sell rutabagas in Hollywood 7-Elevens. Mine just sells porn.)
Ginsburg asks would Weston be making the same argument if the offending shop were a combined “massage parlor-adult hotel”? Weston replies that these businesses would not implicate the First Amendment, then undercuts his answer by characterizing this as a “cute lawyer’s answer.” Ginsburg must reassure him that it was indeed a good answer in the first place. There’s one more little scuffle over whether bad secondary effects are limited to declining neighborhoods, or increased crime rates, or people who just circle the block slowly. All of which evinces the massive problem with the secondary effects doctrine: Any kind of bookstore can lead to negative secondary effects, even if it’s just the proliferation of Starbucks, black leather overcoats, and books with “Chicken Soup” in the title. If you took a poll, more people might prove in favor of zoning all that over adult books.
