# Jurisdictional Statement — Renton v. Playtime Theatres, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0193%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1986 - **Citation:** 475 U.S. 41 ## Text 84-1360 = No. CLE Rr a > . e IN THE tai a cca Supreme Court of the United States OCTOBER TERM, 1984 THE CITY OF RENTON, et al., . Appellants, PLAYTIME THEATRES, INC., a Washington corporation, et al., Appellees. On Appeal from the United States Court of Appeals for the Ninth Circuit APPENDIX TO JURISDICTIONAL STATEMENT E. BARRETT PRETTYMAN, JR.* JAMES G. MIDDLEBROOKS HoGAN & HARTSON 815 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 331-4685 LAWRENCE J. WARREN DANIEL KELLOGG MARK E. BARBER ZANETTA L. FONTES WARREN & KELLOGG, P.S. 100 South Second Street Renton, Washington 98057 (206) 255-8678 * Counsel of Record Counsel for Appellants ee — — WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001 TABLE OF CONTENTS Appendix A Decision of United States Court of Appeals for Ninth Circuit, in Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527 (9th Cir. 1984), de- cided November 28, 1984...........................-.......---- Appendix B Decision of United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, decided February 18, 1983 Appendix C Judgment of United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered February 18, 1983 Appendix D Order of United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered April 29, 1983, denying Plaintiff’s Mo- tions to Alter and Amend and For Stay Pending | ee Te See ee ae Appendix E Order of United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered January 13, 1983, denying Defendants’ Motions to Dismiss and For Summary Judgment and Granting Preliminary Injunction Pendente Lite Page la 23a 33a 34a ii TABLE OF CONTENTS—Continued Appendix F Report and Recommendation of Hon. Philip K. Sweigert, Magistrate, United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered November 5, 1982 ........... Appendix G Order of United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered February 23, 1982, adopting the Febru- ary 3, 1982 Report and Recommendation of United States Magistrate Philip K. Sweigert __... Appendix H Judgment of United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered February 23, 1982, denying Plaintiffs’ Motion for a Temporary Restraining Order _.... Appendix I Report and Recommendation of Hon. Philip K. Sweigert, Magistrate, United States District Court for the Western District of Washington, in Playtime Theatres, Inc. v. City of Renton, No. C82-59M, entered February 3, 1982... Appendix J Notice of Appeal, Playtime Theatres, Inc. y. City of Renton, 748 F.2d 527 (9th Cir. 1984), filed 4, A SRO Em Appendix K Amended and Supplemental Complaint for Declar- atory Judgment and Preliminary and Permanent Injunction, in Playtime Theatres, Inc. v. City of Renton, Me. CUBRGGTE ...2c.- Genusa V. City of Peoria, 619 F.2d 1203 (7th Cir. 1980). See also Northend Cinema, Inc. v. City of Seattle, supra; City of Whit- tier V. Walnut Properties, Inc.. 149 Cal. App. 3d 633, 197 Cal. Rptr. 127 (2d Dist.), vacating 189 Cal. Rptr. 12 (2d Dist. 1983) ; County 12 down because of an actual or practical unavailability of alternative sites,“ an intent to inhibit,“ or the effect of aig? ane ot ae OS a SES SE blishments; and/or an intent to suppress the content of adult films.* In summary Young-style ordinances of Sacramento Vv. Superior Court. 137 Cal. App. 3d 448. 187 Cal. Rptr. 154 (3d Dist. 1982); Hert Book Stores, fue. v. Edmisten, poor Po inde: ee. cart. denied, 7 US. $29 (1980); Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211 (9th Cir. 1984) (appeal from preliminary injunction). 23 E.g.. Basiardanes v. City of Galveston, 682 F.2d 1203, 1209, 1212, 1214 (5th Cir. 1982); Alezander v. City of Minneapolis, 531 F. Supp. 1162, 1168-69 (D. Minn. 1982), afd, 698 F.2d 936 (8th Cir. 1983): CLR Corp. v. Henline, 520 F. Supp. 760, 767 (W_D. Mich. 1981), aff'd, 702 F.2d 637 (6th Cir 1983); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1209, 1214, 1215-17 (N.D. Ga. 1981): E&B Enterprises Vv. City of University Park, 449 F. Supp. 695, 697 (N._D. Tex. 1977) ; Bayside Enterprises, Inc. v. Carson, 450 F. Supp 696, 701-702 (M_D. Fla. 1978). Cf. Lydo Enterprises. Inc. ¥. City of Las Vegas, 745 F.2d at 1213-15 (preliminary injunction deniec where theatre owner failed to show that alternative sites were not available) : Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 336 ‘Sth Cir. 1981) (re abortion clinics) ; Keego Harbo~ Co. ¥. City of Keego Harbor, 657 F.2d 94, 96-99 (6th Cir. 1981) (ordinance totally prohibited adult theatres) . *%E.g.. Tovar v. Billmeyer, 721 F.2d at 1264-65; Kuzinich V- County of Santa Clara, 689 F.2d 1345, 1348-49 (Sth Cir. 1982); Rasiardanes V. City of Galveston, 682 F.2d at 1216; Avalon Cinema Corp. ¥. Thompson. 667 F 2d 659, 661-662 (8th Cir. 1981). See also Ebel v. City of Corona, 698 F.2d 390, 393 (9th Cir. 1983) ; Fantasy Book Shop, Inc. Vv. City of Boston, 652 F.2d 1115, 1119, 1124-25 (ist Cir. 1981). 23 E.g.. Alezander v. City of Minneapolis, 531 F. Supp. at 1170; Purple Onion, Inc. v. Jackson, 511 F. Supp. at 1212, 1217, 1224. Cf. Bayou Landing, Ltd. v. Watts, 563 F.2d 1172, 1175 (5th Cir. 1977), cert. denied, 435 U.S. 818 (1978). 2* E.g.. Purple Onion, Inc. v. Jackson, 511 F. Supp. at 1210; E£B Enterprises Vv. City of Tmiversity Park, 449 F. Supp. at 697. Cf. Bayou Landing, Ltd. v. Watts, 563 F.2d at 1175. 13 have been upheld only in the Seventh Circuit and have First, Fifth, Siath, Eighth, and Ninth Cireuits outlet for adult film fare Before any theatre had em dures. > calid Ghee bad creme Oo ale toe tions, but it tailored its ordinance to fit Renton’s particu- findings and reasons for its action. Its ordinance did not unduly inhibit speech; instead, it set aside what the Dis- trict Court found was a “large percentage of land within the city” (App. 27a) for the iocation of adult theatres and for the showing of their films. Yet Renton’s attempt went for naught. The Ninth Circuit, reviewing the Dis- trict Court’s findings de novo, struck down Renton’s ordi- naNce as unconstitutional The Court of Appeals was wrong in several crucial respects. 1. Renton Properly Relied on the Experience of Other Cities The Ninth Circuit erred in ruling that Renton could a ee ee ee oe ee and urban planning experts aswell as some laymen o 14 cities, and that could be expected in Detroit, from the influx and concentration of such establishments.” 427 U.S. at 81 n.4 (Powell, J., concurring) ; emphasis added. Moreover, the Ninth Circuit’s ruling would effectively prohibit any city from enacting an ordinance in advance of the entry of adult theatres into its environs. A city can hardly rely upon its own experiences unless and un- til adult theatres build or buy within the city limits and introduce the deleterious effects that the ordinance is de- signed to obviate in the first instance. Must a city really wait until adult theatres have started the “cycle of de- cay” that has already been found to evolve in other areas? Nothing in Young or any other of this Court's a i sitesi gaa aan ta te Gcees a 2 eo ee Gee into Renton.” towns in Michigan (Appendix in Young at 18-19), New York City (id. at 30, 35), and cities in countries as far away as Sweden. Denmark, West Germany, France, Britain and Italy. /d. at 32. 2 On the contrary, were a city to await the entry and deleterious effects of adult theatres, it would run the risk encountered by other cities of being accused of drawing its zoning lines with the intent of closing down a particular theatre (or theatres) already operat- ing within its borders. See, ¢.g., cases cited in n.24, supra. 2 Moreover, Renton’s ordinance can hardly be said to have im- it suffered was of its own doing, with full knowledge of the facts. See n. 14, supra. * See, e.g.. Avalon Cinema Corp. ¥. Thompson, 667 F 2d at 661- 662; see also CLR v¥. Henline, 520 F. Supp at 767. 16 en which adh jastity Goldie’s thesis would deny to lawmakers in one locale the benefit of the a and experience of lawmakers in another munity, no matter how similar the circum- pr eeen it would, as it were, require the zcinvention of the wheel countless times over when mere access effort involved unnecessary. [County of Sacremento v. Superior Court, 137 Cal. App. 3d at 455, 187 Cal. Rptr. at 158.) The Ninth Circuit’s contrary ruling imposes imper- missible and wholly unnecessary burdens on municipal die There is simply no basis for courts setting such arbitrary guidelines for the types of “evi- dence” a city council] may consider in its legislative ible Zone for the Location The court below ruled that, even though Renton had effectively set aside 520 acres of land on which adult theatres could locate, this land was constitutionally “un- a er Se > 5) aE developed for existing commercial uses. App. %1 See also Ebel v. City of Corona, 698 F.2d at 392, where the objection that the City Council had not made adequate findings of fact was rejected by the court because the city oe this was all that was required for a “legislative act”. ana heat Enterprises, Inc. ¥. City of Las Vegaz, 745 F.2d at 1215. Cf. Fan- tasy Book Shop, Inc. v. City of Boston, 652 F.2d at 1125. fH 17 theatre is with the quality of the community, the greater its right to locate there. A small, predominantly residen- tial city or town with a centrally located, modest com- mercial development will be unlikely to have much space ailable” for adult theatres. Yet under the Ninth Cir- cities Uke Detvelt with mase epece and many cimilar woes But even if the focus is properly on the practical avail- ability of Renton’s own set-aside zone, the Ninth Circuit wrong. To begin with, it misconstrued the record in a The court cited such properties as the Longacres Racetrack and a city sewage plant as being within the set-aside area, when in fact the racetrack and aside area.™ The confusion can only be accounted for 7 Se Oe Se ee SS See aS and accom- is Gite prior to the time that the permissible dis- tance from schools was reduced from one mile to i,000 feet. The map also contained a number of errors because it had to be prepared within a few hours’ time.* When Go cane Caen Seeeies ane Ge entnenee an amend aoa, canis aus ae aan come %2 See maps at App. 140a-142a. CL. test.. Jume 23, 1982. at 77, 84; see Cl. aff.. Jan. 27, 1982 (inel. map). ™ CL test.. June 23, 1982, at 77-85. ™ Compare map attached to Cl. aff.. Jan. 27, 1982, with map at- tached to Cl. aff.. May 26, 1982. 18 because it treated the District Court’s findings as part “law,” reviewed them de novo, and overturned them. In addition to its view of the facts, the Ninth Circuit’s underlying thesis is fatally flawed. Its approach raises serious concerns of great import to cities and towns throughout the country. The court assumed that unless property is immediately available for purchase from a willing seller, the ordinance has the effect of “ ‘suppress- ing, or greatly restricting access to, lawful speec "tala Even if an ordinance resulting in a “substantial restric- tion” on the showing of adult films would violate the First Amendment, that is clearly not the case in situations like this one. We begin with the fact that Renton did not set aside a small, restricted area of land. The set-aside area is physically large enough to accommodate more than 400 theatres and surrounding parking lots.** It consti- tutes over 4% of all the land in the City (as compared to Seattle’s set-aside area of less than 1% ).* Its acreage is larger than one-fourth of the entire area of Renton occupied by single-family residences and exceeds the amount of land in the City used for parks and recrea- tion.*® Witnesses for both Renton and Playtime testified that rauch of the 520 acres is simply unoccupied land, adjoined and criss-crossed by both highways and interior 37 App. 13a n.11 (quoting Young, 427 U.S. at 71 n.35). 38 Playtime’s own attorney assumed that an adult theatre seating 400 persons would require 6000 sq. feet of space. Cl. dep., Mar. 3, 1982, at 68-72. Renton’s Policy Development Director testified that such a building would need 40,000 additional sq. feet for parking, plus or minus 10% for error, or a maximum total of 52,000 sq. feet for the entire theatre area. Jd. A 520-acre area would encompass 22,651,200 sq. feet, or some 435 theatre areas. 39 Cl. aff., Jan. 27, 1982, at 6. This estimate for Renton was made before the set-aside zone was enlarged by the second ordinance. Therefore, the percentage today would be even larger. 40 C). aff., Jan. 27, 1982, at 2. ee Oe ML Ae an ete Os 19 access roads.** So long as this land is within reasonable driving distance of the City’s populated areas* and physically accessible, why is it not constitutionally “avail- able” for the location of adult theatres? The Court of Appeals does not say. The court does assume, however, that a “fully-developed shopping center” and “a business park containing buildings suitable only for industrial use” are not constitutionally “available’.** This theme appar- ently follows the approach of Playtime’s real estate ex- pert, who testified that much of the land was not “avail- able” because it was occupied, and a number of property owners told him they would not sell to an adult theatre owner.** ‘This approach is wholly specious for two reasons. First, property can be purchased through third parties, with the identity of the true purchaser disguised. But even more importantly, the court’s approach gives the adult theatre owner a preferred position above every other potential purchaser of property. He does not have to compete in the marketplace for property like everyone else, including drug stores, hair salons and theatre own- ers showing regular fare. Even the business offices of the media, also protected by the First Amendment, enjoy no such privilege.** Under the Ninth Circuit’s thesis, a city 41 Cl. aff., May 26, 1982, at 2-3; John. test., June 23, 1982 ’ ’ , . ’ ’ . at Pigg . Cl. test., June 23, 1982, at 54-59, 61-62, 84-85; Cl. test. an. 29, 1982 at 16-17, 27, 42-43, 49-50, 51, 53, 56-57, 61-64; t aff., June 15, 1982, at 4-9. — 42 The entire land area of Renton consists of only 15.3 miles. Cl. aff., Jan. 27, 1982, at 1. ae eee *S App. 13a. There was, however, unrebutted testimony that theatres can be built in areas designated “industrial park.” Cl. test., Jan. 29, 1982, at 60, 63-64. 44 And. aff., June 15, 1982, at 5-8. - Churches, too, must obey zoning laws in the free exercise of their religion and must buy property under the ordinary rules of 20 must establish the existence of a “turnkey” location for the adult theatre operator; property must stand ready to be sold to such an operator from a willing seller. This reasoning is in direct conflict with the view of those courts (including the Seventh Circuit) which have up- held set-aside areas (see n.22, supra), and we submit that it was never the intent of this Court in Young. A set-aside zone should be deemed “available” in the constitutional sense when it is accessible—both in terms of distance from populated areas of the city and in terms of internal streets and highways—and when an ordinary theatre operator could build or buy a theatre there at such time as property becomes available in the ordinary course of business. The fact that others have already built or bought within the area should not be a disquali- fication; to the contrary, it demonstrates that the zone is a frequented, accessible and desirable area. That some present owners express no immediate desire to sell is also not a disqualifying factor; that is a fact of life faced by all potentiai purchasers.“* Owners constantly change their minds, either voluntarily or through the vicissitudes of business life. In summary, if Renton’s set-aside zone is not consti- tutionally “available,” it is fair to say that virtually no supply and demand. See American Communications Ass’n V. Douds, 839 U.S. 382, 397-898 (1950); Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307- 309 (6th Cir.), cert. denied, 104 S. Ct. 72 (1983). 46 It should be noted, however, that even Playtime’s real estate witness could not testify that all property owners within the sét- aside zone would not sell. Some owners told him they would sell, some said they did not think the property was “suitable” for this use, and he could not reach others. And. aff., June 15, 1982, at 4-9. And even some 22 acres owned by the City is not wholly immune from sale to third parties. In fact, the City Council voted as recently as five months ago that in the future the City would study the possible “purchase, trade or sale” of certain of its property. Minutes, Renton City Council, Sept. 24, 1984, at 1. ee ee eae ee rt eee ere ee he ee ee te te ee eR I. me at 21 small city or town in this country will be capable of setting aside a permissible zone, consistent with its other legitimate interests, for the location of adult theatres. The result of such a development will be loss of control by small cities and towns over the “quality of life” of their communities. 3. The Court of Appeals Erroneously Implied an Im- proper Legislative Motive The Ninth Circuit apparently ruled *’ that the expres- sion by citizens at public hearings of views aimed at the content of adult films raised an inference of an im- proper motive by the City Council, and that even if this motive was merely “a” motivating factor in its zoning decision, this was enough to invalidate the ordinance. App. 20a. The court erred in several respects. First, there is a serious question as to whether motive or inter’.either of citizens or of the City Council it- self—has a part to play in a case like this, where any burden on the adult theatre owner’s First Amendment interests is only incidental. When independent legitimate reasons exist for minimal restrictions on First Amend- ment freedoms, this Court has refused to undertake an analysis of the motivation behind the legislative enact- ment. See, e.g. United States v. O’Brien, 391 U.S. at 383-386. Here, the legitimate reasons relate to the very ey of neighborhoods through zoning approved in oung. But even if motive or intent is relevant, the Court of Appeals was still wrong to second-guess a city council. 47 The District Court noted that the City Council had sum- marized ideas put forth at public hearings, including concerns reflecting citizens’ values “which might be impermissible bases for justification of restrictions affecting first amendment interests.” App. 31A. The Court of Appeals interpreted this statement as a recognition that “many of the stated reasons [made by the City Council] for the ordinance were no more than expressions of dislike for the subject matter.” App. 19a-20a; footnote deleted. 22 There was no evidence that any member of the City Council had an improper motive. Nevertheless, the court went behind the specific findings of the Council as to why the ordinance was passed. It apparently concluded that because some citizens at an open meeting expressed per- sonal views adverse to the content of adult films, an inference was raised that at least one motive of the Council itself was improper, and this was sufficient to invalidate the entire ordinance. The court should not have imputed the motives of some citizens to the City Council. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267-270 (1977).** The effect of the Ninth Cir- cuit’s ruling on city governments would be to cancel hear- ings preceding the adoption of zoning ordinances, to close them to the public, or to pre-censor approved speakers. None of these results is practical, all are undemocratic, and they may even be unconstitutional in denying citi- zens their own First Amendment rights to speak. See City of Madison Joint School District v. Wisconsin Em- ployment Relations Comm’n, 429 U.S., 167, 174-176 (1976). Most jurisdictions (including the State of Wash- ington) now require by law that such proceedings be open to the public, precisely so that citizens can express a wide variety of views on the subjects under considera- tion. City councils should not be held responsible for the fact that some citizens do not like adult films. As a matter of fact, the Ninth Circuit ruling would constitute an invitation to adult theatre owners such as Playtime to induce citizens to appear at hearings and express imper- 48 The record in Young showed that a number of citizens had complained in that case about content. For example, one Detroit resident whose letter was introduced into evidence complained to the Mayor, “They have pornography available in their back room, and it is disgusting * * *” (Appendix in Young at 26), and an attorney for the city conceded: “The concern of the neighborhood over the showing of this kind of movie has bee” evidenced time and again by picketing, by calls and letters to our uifice, to the Mayor, to the Common Council and so on.” Jd. at 48. 23 missible views, thus dooming in advance any subsequently- enacted ordinance, no matter how well intended. If the motive of a city council—as opposed to speak- ers at a hearing—is deemed relevant, a court should look to the predominant motive behind the ordinance. An attempt by a court to define “a” single motivating factor behind a legislative act is simply improper.*® In this case, all of the City Council’s stated reasons were con- sistent with a concern about effects. To the extent that its findings could be said to relate to content, the legisla- tive intent was to oppose not adult films per se but rather the showing of adult films in certain locations. By locating the films nearby, in an accessible and com- modious area, the City Council is giving adult films their full play, but without the deleterious effects that evidence has clearly shown will follow if adult theatres are located in all areas of the City. Finally, even if the City Council’s own motives could be said to be based on objectives not heretofore sanctioned by this Court, we respectfully urge that those objectives be approved. It would be ironic indeed if a city could zone adult theatres because of commercial considerations *°In City of Las Vegas v. Foley, 747 F.2d 1294, 1297 (9th Cir. 1984), for example, another panel of the Ninth Circuit held that legislators could not even be questioned about their subjective rea- sons for passing an ordinance, because the ordinance is to be measured by such objective facts as stated intent and effect. And it was precisely because of this problem of delving into the legisla- tive mind-set that Judge Wallace concurred only in the result in the Ninth Circuit’s decision in Tovar v. Billmeyer, supra. He wrote that the majority, by adopting an “a motivating factor” test (721 F.2d at 1266), was refusing to follow the “clear and precise stand- ard” already adopted by the court in Ebel v. City of Corona, 698 F.2d at 393, to the effect that an ordinance is unconstitutional only if its “real purpose” is to obstruct the exercise of protected First Amendment rights. 721 F.2d at 1267 (Wallace, J., concurring). He pointed out that the very nature of the legislative process means that there will always be more than a single purpose for any legis- lative action. Jd. at 1268. 24 such as lowering of residential property values, and not on the ground that these theatres have an unstable and debilitating effect on the families living in those same residences. Such a result would elevate property values over human values. The stability and cohesiveness of families and parents’ efforts to raise their children in suitable surroundings free from crime and blighted areas are also worthy of protection. These were precisely the kind of principles that this Court recognized as a valid basis for zoning in Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974): “It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clear air make the area a sanctuary for people.” Some of the confusion in regard to legislative intent may have been caused by uncertainty arising out of two of this Court’s decisions, Village of Arlington Heights and O’Brien. Arlington Heights dealt with a land area rezoned after a developer contracted to build racially integrated housing. The Court held, on the one hand, that a plaintiff need not prove that the challenged action “rested solely on racially discriminatory purposes,” be- cause rarely is a legislature motivated by a single con- cern. “When there is proof that a discriminatory pur- pose has been a motivating factor in the decision [to rezone], * * * judicial deference is no longer justified.” 429 U.S. at 265-266; emphasis added; footnote deleted. On the other hand, the Court held that the mere fact that opponents of integrated housing who spoke at various meetings “might have been motivated by opposition to minority groups” did not invalidate the ordinance. Id. at 267-270. 50 See also Berman V. Parker, 348 U.S. 26, 32-33 (1954); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58-59 (1973) (citizens have legitimate interest in protecting “the style and quality of life” and “the total community environment’). p 25 The court below focused upon the “a motivating factor” language in Village of Arlington Heights and wholly ig- nored this Court’s holding in that case. In the second case, O’Brien, the Court flatly refused to inquire into legislative motives—an inquiry the Court called “a hazardous matter”. The Court ruled that if a statute is otherwise constitutional, courts may look to legislative history for an interpretation of it, but may not void the statute because of perceived intent on the part of some legislators. 391 U.S. at 384."' In the instant case, the Ninth Circuit improperly engaged in the “guess- work” eschewed in O’Brien. We respectfully suggest that this Court may have un- wittingly given conflicting signals to the lower courts in regard to legislative intent by its decisions in Arlington Heights and O’Brien. The resulting confusion should now be resolved in the context of attempts by cities to zone adult uses. 4. Cities’ Legitimate Attempts to Zone Adult Theatres Are Jeopardized By the Decision Below In Young, this Court was apparently divided over which standard to use in testing the regulation of adult establishments.” A plurality of four treated adult films 51 See also Hart Book Stores, Inc. v. Edmisten, 612 F.2d at 820-830. 52 This split has not gone unnoted by the lower courts (see many of the cases in nn.22-26, supra) and by the commeniators. EF.g., Friedman, Zoning “Adult” Movies: The Potential Impact of Young v. American Mini Theatres, 28 Hastings L.J. 1293 (1977) ; Stevenin, Young v. American Mini Theatres, Inc.: Creating Levels of Pro- tected Speech, 4 Hastings Const. L. Q. 321 (1977); Aver, The Zon- ing of Adult Entertainment: How Far Can Planning Commissions Go? 5 Comm/Ent. L.J. 293 (1982); Pearlman, Zoning and the First Amendment, 16 Urb. Law. 217 (1984) ; Note, Content Regula- tion and the Dimensions of Free Expression, 96 Harv. L. Rev. 1854 (1983); Note, Second Class Speech: The Court’s Refinement of Content Regulation, 61 Neb. L. Rev. 361 (1982); Note, Municipal Zoning Restrictions on Adult Entertainment: Young, Its Progeny and Indianapolis’ Special Exceptions Ordinance, 58 Ind. L. J. 505 (1983). 26 as meriting a lower level of protection than other films, while Justice Powell reached the same result by applica- tion of the O’Brien four-part test. Regardless of which standard is applied, Renton has not violated the First Amendment. Its ordinance is more narrowly tailored than that approved in Young, because it defines “use” even more restrictively than Detroit did. Since its set-aside area is ample to accommodate all of the adult theatres that could possibly want to locate in the city, no suppression of speech has occurred or could occur.** Applying the O’Brien test, it is clear that (i) zoning is within the City’s constitutional power; (ii) Renton’s ordi- nance furthers its important and substantial governmen- tal interests, including the prevention of decay in resi- dential and commercial areas and the control of crime; (iii) the assertion of its governmental interests is un- related to the suppression of free expression but instead is closely tailored to the achievement of those interests; and (iv) any incidental restriction on speech is no greater than is essential in furtherance of Renton’s governmental 53 The ordinance here requires no separation between adult uses, so that an operator need not consider the character of other uses when locating his business. No special licensing or waiver provi- sions, with their inherent difficulties of discretion, are included. Likewise, the requirement of continuous exhibition precludes regu- lation of any incidental or innocent exhibition of sexually explicit material. Renton’s ordinance therefore satisfies the concerns ex- pressed by Justice Blackman in his dissenting opinion in Young, 427 U.S. at 88-96 (Blackman, J., dissenting). 54 This case is thus at the furtherest extreme from Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981), where nude dancing was entirely prohibited. This appeal also does not involve any of the issues presented in another case from the State of Washington presently before the Court, Brockett v. Spokane Arcades, Inc., 725 F.2d 482 (9th Cir.), prob. juris. noted, 53 U.S.L.W. 3235 (U.S. Oct. 1, 1984) (Nos. 84-28 and 84-143). ne ee ee ee ee es nce ta om Ose r= _ a Re A 27 interests because the market for evpression of adult films is “essentially unrestrained” in view of the existence of 520 acres available for adult theatres. If Renton’s ordinance is not sustained, no such ordi- nance can withstand scrutiny, and the hope held out in Young for a reasonable approach to the serious second- ary effects of adult establishments will be dashed for good.*° This case, therefore, presents questions of extraor- dinary importance to small communities throughout the United States. Young’s progeny demonstrate the confu- sion of well intentioned courts seeking to implement this Court’s rulings. The lower courts, as well as city govern- ments and city planners, need and deserve thoughtful guidance in dealing with the First Amendment’s impact on the zoning of adult theatres. Only if the decision be- low is reversed can cities’ efforts to meet this “admittedly serious problem” ** be accorded “a sufficient degree of flexibility for experimentation and innovation” ™* in this vital area of “innovative land-use regulation.” "8 55 See cases cited in nn.23-26, supra. 56 Young, 427 U.S. at 71 (plurality opinion). 57 Northend Cinema, 585 P.2d at 1159. 58 Young, 427 U.S. at 73 (Powell, J., concurring). 28 CONCLUSION For the reasons expressed above, this Court should note probable jurisdiction and reverse the judgment below. * Counsel of Record Respectfully submitted, E. BARRETT PRETTYMAN, JR.* JAMES G. MIDDLEBROOKS HoGAN & HARTSON 815 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 331-4685 LAWRENCE J. WARREN DANIEL KELLOGG MARK E. BARBER ZANETTA L. FONTES WARREN & KELLOGG, P.S. 100 South Second Street Renton, Washington 98057 (206) 255-8678 Counsel for Appellants ne rte ee a eee --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0193%3A02. Public record. Not legal advice.