Court upholds LA 'adult' ordinance

By MICHAEL KIRKLAND, UPI Legal Affairs Correspondent  |  May 13, 2002 at 1:47 PM
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WASHINGTON, May 13 (UPI) -- The Supreme Court upheld a Los Angeles ban on the concentration of "adult" businesses Monday.

To make up the majority, four justices said Los Angeles may rely on the concept of reducing crime to support the ordinance -- the more adult businesses in a location, the higher the crime rate -- and one justice said the city may rely simply on its zoning authority.

In the case that brought Monday's ruling, the city maintained its ordinance is content-neutral when it comes to speech, but is based instead on the negative economic and social effects such concentrations bring.

The lower courts disagreed with the city in a suit filed by two adult businesses.

Los Angeles conducted a comprehensive study of the effects of concentrating such businesses in 1977. According to a petition filed by the city with the Supreme Court, the study found that concentrations of adult businesses resulted in increased crime, lowered property values and city blight, among other things.

In their own brief, the two businesses disagreed, saying that the 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 operated 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 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 -- government can restrict some speech as long as the restriction is "content neutral."

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, 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.

The Supreme Court heard argument in the case last December, and a narrow majority sided with the city in Monday's ruling.

In a plurality opinion, Justice Sandra Day O'Connor said, "We have concluded that the Los Angeles study provides evidence to support the city's theory that a concentration of adult operations in one locale attracts crime, and can be reasonably relied upon to demonstrate that (the ordinance) is designed to promote the city's interest in reducing crime."

She was joined by Chief Justice William Rehnquist, by Justices Antonin Scalia and Clarence Thomas.

Justice Anthony Kennedy, often a key swing vote, wrote a separate opinion concurring in the judgment.

"In my view our precedents may allow the city to impose its regulation in the exercise of the zoning authority," Kennedy said.

But the plurality opinion "might constitute a subtle expansion" of that precedent, Kennedy said, so he was writing separately.

Justice David Souter dissented, and was joined by fellow liberal Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer joined Souter in part.

The "1977 survey provides no support for the breakup policy," Souter said.

If the city is allowed to break up such a natural combination as a book store and a video arcade, and extend that policy to other adult businesses, Souter said, it will double their expenses: "two monthly rents, two electricity bills, two payrolls. Every month business will be more expensive than it used to be, perhaps even twice as much. That sounds like a good strategy for driving out expressive adult businesses. It sounds, in other words, like a policy of content-based regulation."

(No. 00-799, Los Angeles vs. Alameda Books and Highland Books)

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