stating that “[t]his court has never held that an otherwise valid restriction must cover all or nothing, for instance that a city may not make evenhanded exceptions to an otherwise valid restriction”
How later courts described this case
- stating that “[t]his court has never held that an otherwise valid restriction must cover all or nothing, for instance that a city may not make evenhanded exceptions to an otherwise valid restriction”
- noting that earlier cases had “emphasized that the clause is addressed to lawmakers at the time they consider making a law and forbids the enactment of a law directed in terms against any subject of speech, writing, or printing that cannot he shown to fall within an old or modem version of a well-established historical exception that the constitutional guarantees demonstrably were not meant to displace”
- requiring that, under category two of Robertson, the operative text of the restriction regulating the effects of speech of a particular content must specify the adverse effects sought to be avoided and ban the expression only when the speech causes that harm or is imminently likely to do so
- requiring that a city enforcing a regulation placing restrictions on adult businesses demonstrate "the reality of the threatening effect at the place and time” of application and suggesting that the law’s text specify the adverse effects attributable to the adult activity
Written by the judges who cited it.
Distinguished
Distinguished by Oregon Entertainment Corp. v. City of Beaverton, 172 Or. App. 361 (2001)
To the extent petitioner argues that Tidyman requires that the city must sustain a higher evidentiary burden in this case, we reject the argument.
The opinion
GILLETTE, J.,
concurring in part and specially concurring in part.
Justice Linde for the majority has produced an intelligent solution to a pernicious and recurring problem — the *192 question of how a community that knows that adult businesses cause undesirable effects apart from the content of their wares can regulate the businesses to curb the effects. I agree with much of it. However, there are portions as to which I have reservations I believe it appropriate to raise.
I shall first set out the areas in which I agree with the opinion. I agree that the ordinance is aimed by its terms at protected activity. I also agree that, in such cases, any ordinance must have what this one does not — a statement of one or more effects, aside from the protected act of communication itself, that the city desires to limit or eliminate. We call ordinances of this kind “reasonable time, place and manner regulations.” Agreement with the two foregoing propositions means that I also agree with the disposition made in this opinion, because the two propositions establish that the ordinance cannot stand. My reservations have to do with two other propositions offered by the majority.
The first of these propositions is that the ordinance is unconstitutional in its entirety. The ordinance combines two different concerns — a concern with locating adult businesses within a certain distance of a residential neighborhood or each other, and a concern with locating adult businesses near schools. I agree that the ordinance cannot stand as to the former concern; I am unsure as to the latter.
Treating the portion of the ordinance restricting adult businesses to locations at least 500 feet from a school as a regulation designed to protect children, I see it as standing on a footing different from the balance of the ordinance. The right of the city, a county or the state to enact legislation to protect the welfare of children approaches the plenary. If this ordinance dealt with that subject only, it might well pass constitutional muster. But it is not so limited, and the city has not asked us to treat the provisions relating to schools as severable. Absent a request to do so, I agree with the majority that the entire ordinance may, as to this appeal, be declared unconstitutional.
The second of these propositions is the idea that it is impossible for a city to establish with sufficient certainty before the fact the likelihood of any particular undesirable effect arising out of the location of an adult business. The result of this proposition is to require the city to enact an *193 ordinance describing one or more effects it wishes to avoid and then to provide some sort of administrative adjudication procedure to permit a showing, after one of these businesses has been set up, that a proscribed effect is occurring or is about to occur. It may be that the majority is correct. On the other hand, it may be possible for a city, in an ordinance properly concerned with effects (as the present one was not), to justify a flat prohibition of such businesses at certain locations because the city’s own documented and extensive experience, supported by scientific studies, shows that a particular undesirable and forbidden effect — for example, increased incidence of prostitution — always accompanies the establishment of any adult business. While my suspicion is that the majority is right — it can’t be done — certainty on the subject is outside my range of expertise (and, I believe, outside the range of expertise of this court). I therefore should have preferred that we announce only that establishing a constitutionally permissible basis for such a flat locational prohibition has not been accomplished here.