WASHINGTON, Dec. 4 (UPI) -- The Supreme Court is once again wrestling with the issue of free speech protection for sexual material.
The justices heard argument Tuesday on whether any community, in this case Los Angeles, can constitutionally ban the geographic concentration of "adult-oriented" businesses.
The city contends that the ordinance is constitutionally "content-neutral" when it comes to speech, and instead is based on the negative economic and social effects such concentrations bring.
However, the lower courts disagreed with the city in a suit brought by two adult businesses.
Los Angeles conducted comprehensive studies of the effects of concentrating such businesses in 1977. The studies found that concentrations of adult businesses resulted in increased crime, lowered property values and contributed to urban blight, among other things.
In their own brief to the Supreme Court, the two businesses disagreed, saying that one study actually showed property values increased when an adult-oriented business was established in a neighborhood.
In any case, the City Council passed an ordinance in 1978 that banned the "establishment, substantial enlargement or transfer of ownership or control of an adult arcade, adult bookstore, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor or sexual encounter establishment within 1,000 feet of another such business or within 500 feet of any religious institution, school or public park within the City of Los Angeles."
In the early 1980s, the council amended the ordinance to make it clear that the ban included any separate adult business within the same building.
Alameda Books began operation in 1987, closed in 1990 and reopened in 1993 at a different store within the same shopping center. The business now operates both an adult bookstore and an adult video arcade with viewing booths.
Highland Books began operating in 1987 as an adult arcade with viewing booths, and added an adult bookstore in the same location in 1991.
Neither business is located within 1,000 feet of another adult operation, and neither is within 500 feet of a religious institution, school or public park. But a city inspector found the Alameda bookstore in violation of the concentration ban because it operated an arcade as well as a book business.
Both businesses filed a complaint against the city ban in federal court, and a judge concluded that the ban was not a content-neutral, secondary effects regulation.
The finding was central to the case. The courts generally allow government to restrict some speech as long as the restriction is "content neutral," fills some compelling governmental interest and uses the least restrictive method.
For instance, libraries can ban talking in reading rooms, because the intent is not to stifle free expression. Government can ban an adult business if it can show under strict court scrutiny that the intent of the restriction is to reduce crime, not prevent the free expression of ideas.
In the Los Angeles case, however, the judge ruled that the ban was a prior-restraint of speech in violation of the First Amendment. When an appeals court agreed, the city asked the Supreme Court for review.
In its petition to the high court, Los Angeles said the appeals court's ruling and reasoning conflicts with Supreme Court precedent, and with the rulings of five other appeals courts in different parts of the country.
In a separate brief, 118 other California cities voiced their support for Los Angeles's request for review.
Speaking for Los Angeles Tuesday, Deputy City Attorney Michael Klekner said the studies which spawned the ordinance "looked at the clusering effect (of adult businesses) in various communities. ... Concentrations of adult businesses cause secondary effects" such as neighborhood blight and crime.
"Dispersal was the solution," he added.
From the bench, Justice Antonin Scalia questioned whether the city studies really address the facts in the current case.
The studies measured the effect of adult businesses placed side by side, Scalia said, but "you did not measure what would be the effect if you knocked down the wall between them."
The effect was the same, Klekner argued, later telling the justices, "The purpose of clustering is to attract people. ... The purpose of these ordinances is to spread out the patronage."
Speaking for the bookstores, Los Angeles attorney John Weston argued that the city's pre-ordinance studies did not address his clients.
The studies showed that a series of "adult-oriented" storefronts caused at least a perception of a problem.
"This combined-use (facility) is 1,000 feet away from any other adult activity," he said.
"If the city's novel and rather adventurous ordinance is upheld," Weston argued, "the next step would be to parse this business into smaller and smaller pieces."
It would be like taking a 7-11 and counting the dairy section as a separate business, he said.
But Weston ran into trouble with several justices, who said he was not addressing the main point.
Justice David Souter said Weston should have used his time to address the question, "Does the particular combination increase the clientele," and consequently the chances of crime and blight?
The Supreme Court should rule in the case sometime over the next couple of months.
The justices also heard argument Tuesday in a second case. At issue was whether employers have to change seniority policy to avoid violations of the Americans with Disabilities Act.
In other words, if an employee doesn't have the seniority to get a desk job, but has a disability that keeps him or her from doing anything but a desk job, does the ADA require the employer to give the desk job to the disabled employee?
The case out of San Francisco involves a man with a bad back. The justices should rule on that case as well within a couple of months.
(No. 00-799, Los Angeles vs. Alameda Books and Highland Books)
(N0. 00-1250, U.S. Airways vs. Barnett)