educational

Adverse Effects or All An Act?

Vanessa Fung

In 1986 in the small town of Renton, Washington, adult motion picture theaters faced a monumental challenge: the Mayor of this city of 32,000 suggested to Renton City Council members that it enact a zoning ordinance to deal with adult entertainment venues.

Their response? A prohibition against adult theaters operating within 1000 feet of any residential zone, single or multiple family dwelling, church, park or school. After considerable legal haggling, the result was a determination that the ordinance was a valid response to "dangerous" problems created by adult theaters and "satisfies the dictates of the First Amendment." But How?

Time, Place, Manner Regulation
Constitutional law dictates that "content-neutral" time, place, manner regulations are acceptable only if they are "designed to serve a substantial governmental interest" without unreasonably limiting alternative avenues of communication. (475 U.S. 41, 46-47). More simply put, the District Court found that the City Council's "predominate concerns" were with the secondary effects of adult theaters, and not with the content of adult films themselves. Even if "a motivating factor" in enacting the ordinance was to restrict respondents' exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council's decision. 748 F.2d, at 537

Substantial Government Interest
The Court found that a city's interest in preserving the quality of life in the city was proper. In fact, it is proper for Renton to regulate adult theaters by dispersing them in the outskirts of the city. Since Renton did not summarily ban adult theaters from operating, the Renton City Ordinance was considered valid. So it's not surprising that when the ACE Miami Adult Legal Conference assembled in March of this year, discussion surrounding the future difficulties facing adult business owners centered around this pivotal secondary effects case.

According to Brad Shafer, a veteran First Amendment lawyer, "secondary effects is now the doctrine that the Supreme Court and the federal courts and state courts around the country now utilize as a basis to regulate any type of adult business and any type of regulation." However, this type of reasoning is flawed for a number of reasons.

In Flanigan Enterprises, Inc. v. Fulton County, an ordinance was enacted which prohibited the sale of alcohol in nude dance clubs. According to Steve Youngelson, the attorney for Flanigan Enterprises, Inc., the case revolved around the secondary effects studies the county conducted before enacting these ordinances. Police and Department of Planning officials studied alcohol consumption in dance clubs as they related to property value and crimes in the surrounding areas. What is problematic is that Fulton County relied on Los Angeles and San Antonio based studies completed in the 1970's.

The result? They were unable to find any correlation between the two. So, in order to substantiate the claim that there really did exist a secondary detrimental effect, the county looked elsewhere, effectively abandoning the results of their own studies. Using studies conducted in Los Angeles and San Antonio, cities which found a detrimental correlation. What is problematic is that Fulton County relied on Los Angeles and San Antonio based studies completed in the 1970's. While Renton suggests that if a county does not have it's own studies, it may use those of other cities in similarly situated areas, the difficulty arises in finding any similarity between these two cities nearly three decades apart. Reasonable? Stretching it.

Although the Supreme Court has ultimately decided that legislatures may reasonably rely upon these studies, the reasonableness of these studies needs to be reconsidered. Until we reach a time when the Court can admit these studies are flawed, adult businesses and their owners must maintain a vigilante watch on the legal maneuverings of police and prosecutors on a rampage.

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