Amicus Curiae Brief — Renton v. Playtime Theatres, Inc.

No. 84-1360

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

THE CITY OF RENTON, et al.,

y, Appellants,

PLAYTIME THEATRES, INC.,

é. Washington corporation, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Ninth Circuit

MOTION TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE

OF THE NATIONAL LEAGUE OF CITIES,

THE NATIONAL ASSOCIATION OF COUNTIES,

THE INTERNATIONAL CITY

MANAGEMENT ASSOCIATION,

THE UNITED STATES CONFERENCE OF MAYORS,

THE COUNCIL OF STATE GOVERNMENTS,

AND THE AMERICAN PLANNING ASSOCIATION

IN SUPPORT OF A PLENARY HEARING

AND REVERSAL OF THE DECISION BELOW

LAWRENCE R. VELVEL JOYCE HOLMES BENJAMIN

MEMEL, JACOBS, PIERNO, THE STATE AND LOCAL

GERSH & ELLSWORTH LEGAL CENTER

1800 M Street, N.W. 444 North Capitol St., N.W.

Washington, D.C. 20036 Suite 349

(202) 822-3939 Washington, D.C. 20001

Of Counsel (202) 638-1445

Counsel of Record for the

Amici Curiae

QUESTION PRESENTED

May a city government require that “adult” motion

picture theaters not be located where they would ad-

versely affect children, schools, churches, property values

and the quality of life, but instead be located in commer-

cial areas more suitable for the showing of movies de-

picting explicit sexual acts?

(i)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1360

THE CITY OF RENTON, et al.,

7 Appellants,

PLAYTIME THEATRES, INC.,

a Washington corporation, et al.,

° Appellees.

On Appeal from the United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

THE NATIONAL ASSOCIATION OF COUNTIES,

THE INTERNATIONAL CITY

MANAGEMENT ASSOCIATION,

THE UNITED STATES CONFERENCE OF MAYORS,

THE COUNCIL OF STATE GOVERNMENTS,

AND THE AMERICAN PLANNING ASSOCIATION

Pursuant to Rule 36 of the Rules of the Court, amici

respectfully move this Court for leave to file the attached

brief amicus curiae in support of appellant City of

Renton and its officials.’

The amici are organizations whose members include

state, city and county governments and officials located

! Appellants have consented to the filing of this brief. Appellees

have not.

(iii)

iv

throughout the United States, and an organization com-

prised of city and regional planners and officials concerned

with planning.

This case is of vital importance to amici and their

members, because it presents constitutional issues affect-

ing the power of government to regulate the permissible

locations of “adult” motion picture theaters. The case

thereby has an important impact upon the essential inter-

est of state and local governments in protecting and pre-

serving the quality of neighborhood life through effective

land use planning. City officials have attempted to rec-

oncile First Amendment values with traditional zoning

principles, in accordance with this Court’s guidance in

Young v. American Mini Theatres, Inc., 427 U.S. 50

(1976), reh’g denied, 429 U.S. 873 (1976). Decisions of

the Ninth Circuit and other United States courts of ap-

peals, however, overturning ordinances essentially similar

to the Detroit ordinance upheld by this Court in Young,

leave state and local governments in need of further in-

struction from this Court.

For these reasons, amici seek leave to file this brief to

assist the Court in its consideration of this litigation.

Respectfully submitted,

LAWRENCE R. VELVEL JOYCE HOLMES BENJAMIN

MEMEL, JACOBS, PIERNO, THE STATE AND LOCAL

GERSH & ELLSWORTH LEGAL CENTER

1800 M Street, N.W. 444 North Capitol St., N.W.

Washington, D.C. 20036 Suite 349

(202) 822-3939 Washington, D.C. 20001

Counsel of Record for the

Amici Curiae

a

TABLE OF CONTENTS

Page

QUESTION PRESENTED cece eee i

MOTION FOR LEAVE TO FILE BRIEF AMICUS

| ____e ee e iii

TABLE OF CONTENTS _..0...----ccccccccccccccccseceesseceeeeeeeeees v

TABLE OF AUTHORITIES _.....0..-.0/..-ccccccccccccceeseeceeee- vi

INTEREST OF THE AMICI CURIAE ........................ 1

STATEMENT OF THE CASE ....o-ooooococcccccececeeeeeseeees 2

SUMMARY OF ARGUMENT ......--c-ccccccceceeeeeceeeeee 8

I 9

I. THIS CASE PRESENTS IMPORTANT IS-

SUES WHICH REQUIRE PLENARY HEAR-

ING AND DECISION BY THIS COURT .......... 9

I

B. The Ninth Circuit Opinion Below Leaves

Doubt As To What Evidence of the Adverse

Effects of “Adult” Theaters Would Meet Its

Test of Constitutionality ...................2222......... 12

C. The Decision Below is Inconsistent with this

Court’s Opinion in Young v. American Mini

REA a RE 13

D. Unlike the Decision in Young, the Ninth

Circuit Result Establishes an Impossible

TS Ae Oe ae OPT SEN 16

E. The Ninth Circuit Decision is Inconsistent

with Other Opinions of this Court -.............. 18

I]. THE NINTH CIRCUIT’S FAILURE TO AB-

STAIN LED TO AN ANOMALOUS RESULT.. 18

SITY cciesscissesinsninncsaissnisisititiiniinadiatniitieaiansidniiniaininndaaianives 20

vi

TABLE OF AUTHORITIES

CASES Page

Berman v. Parker, 348 U.S. 26 (1954) —.0000000. 2,9, 10,18

City of Minot v. Central Avenue News, Inc., 308

A ¢ f Y. & iy | RRR inesenmnenemanene 10

City of Norfolk v. Tiny House-Mom’s Restaurant,

222 Va. 414, 281 S.E.2d 836 (1981) _........00000... 10

City of Renton v. Playtime Theatres, Inc., No. 82-

2-02344-2, (Super. Ct., King County, Wash.,

i is 2,3

Cooper v. Mitchell Brothers’ Santa Ana Theatre,

454 U.S. 90 (1981), reh’g denied, 456 U.S. 920

ERS ce PO er Ore ME ree eral ORO 7

Cox v. New Hampshire, 312 U.S. 569 (1941) ......... 15

Ebel v. City of Corona, 698 F.2d 390 (9th Cir.

ERTS TS Ry Ree Rtv snare A en ore ae 13

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).. 9,10

Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir.

ESE Ri oe Her ver menor an renee meme 10, 11, 17

Grayned v. City of Rockford, 408 U.S. 104 (1972).. 15

Kovacs v. Cooper, 336 U.S. 77, reh’g denied, 336

I lle 15

Kuzinich v. County of Santa Clara, 689 F.2d 1345

I OR 13

Laird v. Tatum, Memorandum of Justice Rehn-

CI, Ge Gs Ge CD cicceeccnicteinesescesncnemetnccinens 20

Los Angeles v. Taxpayers for Vincent, —— U.S.

i se 18

Marco Lounge, Inc. v. City of Federal Heights,

| Ere me ee 10

Metromedia, Inc. v. City of San Diego, 453 U.S.

5 AR REE ERAT ER ne eran Oe gre 18

Middlesex County Ethics Committee v. Garden

State Bar Ass’n, —— U.S. ——, 102 S.Ct. 2515

ESAS TCR A ORE” ORES RE Aa ein ode eR 20

Northend Cinema v. City of Seattle, 90 Wash.2d

Pn Se I CI i iisccetniiiniensictsinptensatbindeiian 19

Penn Central Transportation Co. v. City of New

By Te i I IID wkiiediciccccccenesnnnventnctisnctiose 10, 18

Playtime Theatres, Inc. v. City of Renton, 748

I ad elena passim

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. O’Brien, 391 U.S. 367 (1968) _.... 7, 8,13

Village of Belle Terre v. Boraas, 416 U.S. 1

IITIIIT icsccebnckecisielassahaiedaseatadidiedinaieianhasdidenes bihalieeetedaiiaeietae? 10, 15, 18

Young v. American Mini Theatres, Inc., 427 U.S.

50 (1976), reh’g denied, 429 U.S. 873 (1976) ....passim

Younger v. Harris, 401 U.S. 37 (1971) ................... 20

CONSTITUTIONAL PROVISIONS

RG) RIES EAE passim

STATUTES AND ORDINANCES

Renton, Washington, Zoning Code, Chapter 7 of

Title 4, Zoning §§ 4-701 et seq. -.......2...002.22.ee220.. 7

Renton, Washington, Ordinances No. 3526, 3629,

I a a eceeeiial passim

TREATISES AND PERIODICALS

Clor, Public Morality and Free Expression: The

Judicial Search for Principles of Reconciliation,

28 Hastings L.J. 1305 (1977) ............. Sa ATT oe 10

Marcus, Zoning Obscenity: Or the Moral Politics

of Porn, 27 Buffalo L. Rev. 1 (1978) —.....0000000..... 10

Newsweek, March 18, 1985 ........................................ 16

Rg a Or Ra a 16

I a sehipalinmeuihadamanmaiods 16

MISCELLANEOUS

City of Renton, Comprehensive Plan Compendium,

SL SSN Es Oe nn a 2, 3, 6

Nichols, Cyc. Legal Forms §§ 9.5026 et seq. (1983) .. 17

F. Strom, Zoning Control of Sex Businesses

RE aed SOLS eee ne ere 9,17

IN THE

Supreme Cet of the United States

OCTOBER TERM, 1984

No. 84-1366

THE CITY OF RENTON, et al.,

Appellants,

Vv.

PLAYTIME THEATRES, INC.,

a Washington corporation, et al.,

Appellees.

On Appeal from the United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE NATIONAL LEAGUE OF CITIES,

THE NATIONAL ASSOCIATION OF COUNTIES,

THE INTERNATIONAL CITY

MANAGEMENT ASSOCIATION,

THE UNITED STATES CONFERENCE OF MAYORS,

THE COUNCIL OF STATE GOVERNMENTS,

AND THE AMERICAN PLANNING ASSOCIATION

IN SUPPORT OF A PLENARY HEARING

AND REVERSAL OF THE DECISION BELOW

INTEREST OF THE AMICI

The interest of the amici is set forth in the motion for

leave to file this brief.

2

STATEMENT OF THE CASE

This case concerns the effort of a small city to protect

its neighborhoods by limiting the location of “adult” mo-

tion picture theaters which show sexually explicit films.’

Renton, Washington is a city of less than 35,000 popu-

lation, situated south of Seattle on Lake Washington. The

citizens of Renton, like those in many communities

throughout the country, have tried tc make their city

“beautiful as well as healthy, spacious as well as clean,

well-balanced as well as carefully patrolled.” Berman v.

Parker, 348 U.S. 26, 33 (1954). Since April 1965, when

Renton adopted its first comprehensive plan,” the city has

1 The “adult” movies at issue here were described in the decision

of the State trial court. They were found to contain

“a substantial content of highly repetitive, sexually explicit

conduct, which includes masturbation, fellatio, cunnillingus,

oral, anal and vaginal sexual intercourse, often occurring simul-

taneously and involving several people, repetitive ejaculation

visibly displayed, to the body and usually to the face of female

participants.” They also contain “Ts] ame sex activity . . . limited

generally to women, fand] mixed groups of men and women

such as two mer and one woman or two women and one man or

numerous people engaged in various activities simultane-

ously. . . .”. Memorandum Decision, March 9, 1984, City of

Renton v. Playtime Theatres, Inc., Superior Court for the State

of Washington for King County, No. 82-2-02344-2 at 21 (here-

inafter Mem. Dec. Sup. Ct. Wash.).

2“The purposes of the comprehensive plan are: To improve the

physical and social environment of the city as a setting for human

activities—to make it more functional. beautiful, decent, healthful,

interesting, and efficient: To ensure acceptable levels of access,

utilities an@ other public services to future growth and develop-

ment{;] To promote the public interest, and the interest of the city

at large!;] To facilitate the democratic determination and impie-

mentation of City policies and developments; To effect coordination

in development; To inject long-range considerations into the deter-

mination of short-range actions; and To provide professional and

technical knowledge in the decisions affecting development of the

City.” City of Renton, Comprehensive Plan Compendium 3. Janu-

ary 1985, (available at City Hall. Renton, Washington).

“The overriding consideration is to promote public safety, wel-

fare, and interest. Additional factors to be considered (not in

order of priority) are preeervation of property rights, protection of

3

worked to develop and maintain a community that is a

good place to live.

Renton has retained much of its original downtown

core area which contains not only “commercial uses, but

single residences and church and school uses which have

been, and continue to be, a part of the neighborhood.” *

As part * its comprehensive plan, Renton adopted area-

specific plans including one for the central area of the

city. That plan was developed and refined through “a

process of field analysis, data gathering and public input,

two public meetings and one public hearing” between 1979

and 1982.4 The central downtown area was conceived as

one providing for “sufficient retail services to accom-

modate the projected residential and employment popula-

tion of the area.” It also includes a “variety of housing

opportunities, including single family and multiple family

housing” for close-in living." Development and redevelop-

ment were planned along the Cedar River to maintain a

recreational flavor in that portion of the community.°

life and property, equal opportunities, public interests prevailing

over private interests, and economic and social benefits. City of

Renton, Comprehensive Plan Compendium, supra at 3.

3 Mem. Dec. Sup. Ct. Wash. at 5. The state court judge also noted

that “[s]ubstantial recent investment in amenities is clearly evident

and within a very close proximity of the theater, residences, busi-

nesses, schools and churches, there are aiso municipal buildings and

a series of waterfront parks and recreational and civic use facili-

ties... .” Id. at 5-6.

* City of Renton, Comprehensive Plan Compendium, supra at 61.

In adopting specific ordinances, which form part of the comprehen-

sive plan, the usual local government process of study, committee

meetings, council meetings and public hearings was followed. For

example, before the Council adopted the “adult” theater ordinance

in question, the Planning and Development Committee held at least

six meetings. Jurisdictional Statement of Appellants, at 5, fn. 4.

5 City of Renton, Comprehensive Plan Compendium, supra at 62.

® Jd. at 63.

4

As part of the effort to maintain the central area of the

city as a good place to live, Renton adopted a number of

zoning ordinances,’ including one adopted in April, 1981,

dealing with “adult” motion picture theaters. Patterned

after the Detroit ordinance approved by this Court in

Young v. American Mini Theatres, Inc., 427 U.S. 50

(1976),® the ordinance attempts to prevent the operation

of “adult” motion picture theaters in areas close to

schools, residences, churches and public parks. It was

adopted after almost a year of study following public

hearings at which the city council heard testimony and

reviewed exhibits indicating the potential adverse effect

of “adult” entertainment uses on property values and the

social climate of business and residential areas of the

city.

The ordinance,’ which expressly relied on the adverse

effects of “adult” motion picture theaters on neighbor-

hoods in Seattle, Detroit and other cities, was adopted

before any such use was established or, as far as anyone

knew, contemplated in Renton itself. The District Court

7 Jd. at 1. See alsvu, Renton, Wash., Code, Chapter 7 of Title 4,

Zoning, §§ 4-701 et seq. (available at Renton City Hall, Renton,

Washington).

8 The Renton ordinance, unlike the Detroit ordinance, provides

only for civil, not criminal, penalties.

® The first ordinance, adopted in April 1981, contained the follow-

ing definitions:

“1. ‘Adult Motion Picture Theater’: An enclosed building

used for presenting motion picture films, video cassettes, cable

television, or any other such visual media, distinguished or

characterized by an emphasis on matter depicting, describing

or relating to ‘specified sexual activities’ or ‘specified anatomical

areas’ as hereafter defined, for observation by patrons therein.

“2. ‘Specified Sexual Activities’ :

(a) Human genitals in a state of sexual stimulation or

arousal ;

(b) Acts of human masturbation, sexual intercourse or

sodomy ;

5

found that five hundred and twenty acres, or approxi-

mately five percent of the total land area, remained avail-

able for “adult” motion picture use.’® The available land

is zoned for commercial and industrial park uses and is

adjacent to a freeway interchange. The area in question,

the Valley Planning Area, is “a developing area of in-

dustrial, commercial, and office uses.” It is to be “de-

veloped with a diversity of high quality industrial, com-

mercial and office uses” and “should be the principal

(c) Fondling or other erotic touching of human genitals,

pubic region, buttock or female breast.

“3. ‘Specified Anatomical Areas’

(a) Less than completely and opaquely covered human

genitals, pubic region, buttock, and female breast

below a point immediately above the top of the

areola; and

(b) Human male genitals in a discernible turgid state,

even if completely and opaquely covered.” App. L,

78a-79a, (References in this form are to the Ap-

pendix to the Jurisdictional Statement.

The ordinance prohibited “adult” motion picture theaters within

1000 feet of any residential zone or any single family or multiple

family use, any church or any public park or park zone. It also

prohibited such use within one mile of any public or private school.

App. L, 99a. This latter provision was amended in May 1982 to

prohibit “adult” theater uses within 1000 feet of any school, thus

expanding the area available for such entertainment facilities.

App. M, 87a. The amended ordinance also clarified the term “used”

by defining it as

“a continuin, -vourse of conduct of exhibiting ‘specific [sic

specified ?] sexual activities’ and ‘specified anatomical areas’ in

a manner which appeals to a prurient interest.” bid.

10 The Court of Appeals questioned the validity of this finding.

App. A, 13a-14a. Amici do not wish to engage in an evidentiary

dispute, but note that the Court of Appeals’ opinion implies that

some area was in fact available for such use. Appellants’ brief

reviews the factual evidence and demonstrates persuasively that

there was ample scope for adult entertainment uses commensurate

with the size of the city of Renton, even if the available area was

not at large as the District Court found.

en ae

6

growth area for these uses” within the city.’ It is within

15 minutes driving distance of any area in Renton.

In January, 1982, Playtime purchased the Renton thea-

ter, knowing that it was within the area proscribed by

the ordinance, for the admitted purpose of exhibiting

“adult” motion pictures. Before completing its purchase,

Playtime filed an action in federal court on January 20,

1982,"2 asking that the ordinance be declared unconstitu-

tional and that its enforcement be permanently enjoined.

On January 11, 1983, adopting the findings of a magis-

trate, the district court granted a preliminary injunction.

App. A, 35a-36a. For the first time Playtime began show-

ing adult movies at the Renton theater.

The parties stipulated to submit the case for a deter-

mination whether a permanent injunction should issue

on the basis of the record already developed. On Febru-

ary 17, 1983, the district court denied the permanent in-

junction. App. 32a. Finding that 520 acres were avail-

able as potential sites for adult theater use, the court

concluded that the ordinance did not substantially restrict

First Amendment interests. The court also held that the

city was not required to show specific adverse impact on

Renton from the operation of aduit theaters, but could

rely on the experiences of other cities. Lastly, the court

found that the purposes of the ordinance were unrelated

to the suppression of speech and that the restrictions it

11 City of Renton, Comprehensive Plan Compendium, supra at 33.

Only one small area is designated for heavy industrial use. /d.

at 47.

12 A month later, in February, 1982, Renton brought suit in state

court seeking a declaratory judgment that the ordinance was con-

stitutional on its face and alleging that an actual dispute existed

because of Playtime’s pending federal lawsuit asserting that the

ordinance was unconstitutional. Renton also moved to dismiss

Playtime’s federal action on grounds of abstention. The federal

district court subsequently ruled that abstention was improper.

App. A, 4a.

7

imposed were no greater than necessary to further the

governmental interests at stake."

Playtime appealed, and the Ninth Circuit reversed.

The Court of Appeals declared that it had an obligation

to scrutinize strictly zoning decisions that infringe First

Amendment rights. It disagreed with the district court

as to the availability of land and concluded that the lim-

ited area allowed for “adult”? theater uses would cause a

substantial restriction on freedom of speech. Using the

four-part standard of review set forth in United States

v. O’Brien, 391 U.S. 367 (1968),'* the Ninth Circuit sub-

jected the district court’s decision to de novo review as

involving mixed questions of fact and law. The Court

of Appeals conceded that, under the O’Brien test, the

regulation was within Renton’s constitutional power, but

stated that Renton had not shown a substantial govern-

mental interest in enacting the ordinance, as the ordi-

nance itself contained only conclusory statements. The

Ninth Circuit also found that Renton did not meet the

13 The state court complaint was later amended by Renton to seek

abatement of the operation of the theater. The Superior Court

judge used an advisory jury drawn from the King County jury

pool, which represented a cross-section of individuals and back-

grounds, to consider 10 films stipulated to be typical of those

presented at the Renton theater by Playtime. The court applied the

high standard of proof, i.e., clear, cogent and convincing evidence,

used in C per v. Mitchell Brothers’ Santa Ana Theatre, 454 U.S.

90 (1981), reh’g denied, 456 U.S. 920 (1982), in determining that

their exhibition should be abated. The state court judge held ex-

hibition of the films submitted to the court as typical of those

shown at the theater constituted “a nuisance per se, and an

‘adult motion picture theater’ as defined” in the ordinance and

shrould be abated. Mem. Dec. Sup. Ct. Wash. at 40.

14 The test is: “[A] governmental regulation is sufficiently justi-

fied if it is within the constitutional power of the Government;

if it furthers an important or substantial governmental interest;

if the governmental interest is unrelated to the suppression of

free expression; and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential! to the further-

ance of that interest.” United States v. O’Brien, 391 U.S. at 377

(1968).

8

third prong of the O’Brien test, as Renton “has not

proved that the regulation is unrelated to the suppression

of speech.” The court never reached the fourth prong of

the test to determine whether “the incicental restriction

on First Amendment freedom is no greater than essen-

tial to further [Renton’s governmental] interest.”

SUMMARY OF ARGUMENT

1. This case is of paramount importance to state and

local officials all across the nation. They are concerned

with community planning aimed at preserving the qual-

ity of life in urban neighborhoods. Their efforts to

achieve this purpose through the use of zoning were ap-

proved by this Court in Young, where the Court ruled

expressly that a city’s zoning power allows enactment of

ordinances which regulate the location of “adult” thea-

ters showing sexually explicit films. But despite the rul-

ing in Young, the decisions of the courts of appeals in

this and other cases cast doubt on the ability of a city

to exercise its zoning power to regulate the location of

“adult” theaters.

Unlike this Court, the Ninth Circuit declined to recog-

nize the important community interest in preserving the

quality of urban life, and struck down the Renton ordi-

nance as allegedly lacking substantial government inter-

est and being suppressive of free speech. The court below

failed to recognize that the ordinance does not prevent

the communication or reception of any ideas, but simply

limits the places where “adult” films may be exhibited.

2. The Ninth Circuit opinion imposes a difficult eviden-

tiary burden on local governments seeking to protect

children, schools, churches, and residential neighborhoods

from the anticipated adverse effects of “adult” uses. The

burden demanded by the Ninth Circuit is inconsistent

with the views of this Court in Young. Furthermore, the

precise requirements of the burden are undefined, so that

cities are left in doubt as to what investigation and study

must be undertaken before adopting zoning regulations

9

reasonably designed to forestall the problems attendant

upon “adult” entertainment uses.

3. The Ninth Circuit opinion is also inconsistent with

decisions of this Court involving zoning regulations which

carry out aesthetic goals. Such regulations have been

upheld even though incidental limits are imposed on First

Amendment rights.

4. Finaliy, amici believe abstention would have been

proper in this case. The lower courts’ failure to abstain

gives sanction to an unseemly race to the courthouse

engaged in by appellees, and creates an anomalous situa-

tion in which the Renton ordinance has been struck down

in federal court while an almost identical ordinance of

the sister city of Seattle has been upheld by the highest

state court.

ARGUMENT

I. THIS CASE PRESENTS IMPORTANT ISSUES

WHICH REQUIRE PLENARY HEARING AND DE-

CISION BY THIS COURT

A. Introduction

This case is one of great national importance. All

across the country, cities, counties and states have been

engaged in comprehensive efforts to improve the quality

of life for people.** Land use planning, environmental

laws and historic preservation are but means to achieve

the goal of making communities desirable places to live."

It is well settled that under the police power, a city

can zone to protect its neighborhoods and promote “pub-

lie safety, public health, morality, peace and quiet, law

and order.” Berman v. Parker, 348 U.S. 26, 32 (1954).

15 The reference to “cities” in this brief should be read as includ-

ing other general purpose units of state and local governments,

many of which have adopted zoning ordinances similar to that in

question. F. Strom, Zoning Control of Sex Businesses 1 (1977).

16 The reason for this government effort is plain. As this Court

noted in Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926) :

10

As part of this effort to improve the quality of life, cities

have attempted to limit the adverse impact on the land

values and quality of life of the sur. »unding community

caused by the proliferating “adult” entertainment indus-

try. Anyone who has visited a major city in the last few

years is well aware that “adult” entertainment uses

affect the general quality of life.'’ Since the Court’s deci-

sion in Young, many cities have enacted zoning ordi-

nances patterned after the Detroit ordinance upheld by

the Court in that case."*

“Until recent years, urban life was comparatively simple;

but, with the great increase and concentration of population,

problems have developed, and constantly are developing, which

require, and will continue to require, additional restrictions in

respect of the use and occupation of private lands in urban

communities.”

Local land use regulations rationally related to legitimate govern-

mental objectives and which do not violate the just compensation

clause are usually sustained. Thus, Berman, supra, held that it was

within the power of the legislative branch to take into account

aesthetic as well as health considerations. See Euclid v. Ambler

Realty Co., 272 U.S. 365 (1926) (zoning laws not invalid exercise

of police power). See also Penn Central Transportation Co. v. City

of New York, 438 U.S. 104 (1978) (comprehensive plan preserving

structures of historic or aesthetic interest not discriminatory nor

a “taking”); Village of Belle Terre v. Boraas, 416 U.S. 1 (1974)

(upholding ordinance limiting land use to one-family dwellings).

17Clor, Public Morality and Free Expression: The Judicial

Search for Principles of Reconciliation, 28 Hastings L.J. 1305, 1306

(1977).

18 Marcus, Zoning Obscenity: Or, the Moral Politics of Porn, 27

Buffalo L. Rev. 1 (1978). See Genusa v. City of Peoria, 619 F.2d

1203 (7th Cir. 1980), sustaining zoning ordinance restricting loca-

tion of adult theaters; see also, City of Norfolk v. Tiny House, Inc.-

Mom’s Restaurant, 222 Va. 414, 218 S.E.2d 836 (1981), upholding

zoning ordinance requiring a use permit for adult uses within

1000 feet of other adult uses; City of Minot v. Central Ave News,

Inc., 308 N.W.2d 851 (N.D. 1981), sustaining restriction on loca-

tion of adult entertainment center where there was substantial

area available for operating such a center; Contrast, Marco Lounge,

Inc. v. City of Federal Heights, 625 P.2d 982 (Colo. 1981), striking

down zoning ordinance confining adult entertainment to “entertain-

ment districts” which were not provided for within city limits.

11

In Young, the Court approved a zoning ordinance that

treated “adult motion picture theaters” as a “regulated

use” and limited the area in Detroit in which such thea-

ters could be located. The Court’s holding, 427 U.S. at

62—“The mere fact that the commercial exploitation of

material protected by the First Amendment is subject to

zoning and other licensing requirements is not a sufficient

reason for invalidating these ordinances’”—<carefully bal-

anced a concern with the communal quality of city life

with the interest in preserving First Amendment values

and protecting the free dissemination of ideas.

Relying on the decision in Young, and concerned with

the spread of enterprises which havecontributed to neigh-

borhood deterioration and blight, many cities have en-

acted laws zoning the location of “adult” motion picture

theaters. Although these ordinances have often been up-

held by state supreme courts, only one has been sustained

by a federal court of appeals, and several others have

been struck down by federal courts of appeals.’® The

conflict in these decisions demonstrates confusion con-

cerning the meaning and effect of the Young decision.

At this point, cities and counties need further guidance

from the Court as to how they may protect their neigh-

borhoods, family life, and children from urban blight

without transgressing First Amendment limitations.

The need for guidance is illustrated by the background

of this case. The city of Renton, as part of its overall

effort to maintain a desirable and wholesome community,

began to study the regulation of “adult” entertainment

land uses. Renton had no “adult” motion picture thea-

ters but was aware that such uses, unregulated, had had

adverse impacts elsewhere, on neighborhoods, on children,

and on property values. Therefore, the Renton City

Council, its Planning and Development Committee, and

the office of the City’s acting Planning Director under-

1% See Genusa v. City of Peoria, 619 F.2d 1203 (7th Cir. 1980),

and cases cited in appellants’ Jurisdictional Statement, p. 12, fns.

23, 24, 25, 26.

12

took an extensive study of the problem. After soliciting

information from the community, and holding public

hearings, the Council drafted an ordinance patterned on

that upheld by this Court in Young.” Yet, though the

ordinance was sustained by the federal district court, it

was struck down by the Ninth Circuit as lacking substan-

tial government interest and suppressive of free speech.

B. The Ninth Circuit Opinion Below Leaves Doubt As

To What Evidence of the Adverse Effects of “Adult”

Theaters Would Meet Its Test of Constitutionality

In its opinion, the Ninth Circuit acknowledged that

Renton was not required to permit the operation of

“adult” theaters in order to document their effects in its

own community before undertaking their regulation.

But the court left wholly undefined the nature of the

evidence necessary to substantiate a restriction on such

land use. Playtime’s motion to affirm suggests that Ren-

ton had a duty to undertake an investigation of cir-

cumstances in other cities to determine whether their

environment was sufficiently similar to that of Renton

to make their experiences relevant. Such a _ require-

ment is obviously onerous and impractical, in terms of

financial and personnel resources, for a small community.

In Young, 427 U.S. at 55, this Court placed reliance on

several scholarly and empirical studies in upholding De-

troit’s restriction on “adult” entertainment land uses.

Yet the Ninth Circuit’s opinion appears to preclude simi-

lar reliance by a city seeking to frame a reasonable stand-

ard for the permitted operation of “adult” theaters.

Moreover, the Ninth Circuit, while disapproving the

District Court’s finding of the extent of the land left

available by Renton’s plan for “adult” exhibitors, offers

no guidance concerning the geographical extent to which

such use must be permitted, either in terms of actual

acreage, or in terms of a percentage of the area of the

20 See Appendix to Jurisdictional Statement of Appellants, App.

O, P, Q, R and S for the Detroit and Seattle Ordinances.

13

city as a whole, or of the area open to entertainment

uses generally.

This Court, in Young, made it plain that some restric-

tion on the freedom to exhibit “adult” movies is constitu-

tionally permissible in the interest of preserving other

important community values including “the present and

future character of its neighborhoods.” 427 U.S. at 72.

Cities urgently need more specific guidance, so that they

may tailor such restrictions to community needs without

running afoul of the First Amendment.*!

C. The Decision Beiow is Inconsistent with this Court’s

Opinion in Young v. American Mini Theatres, Inc.

In ruling that the City of Renton had not shown a

substantial governmental interest in restricting “adult”

entertainment, and that Renton had “not shown that it

was not motivated by a desire to suppress speech based

on its content,” * the Ninth Circuit reached a result in-

consistent with the Court’s test in Young.

21 The Ninth Circuit also rejected a similar ordinance in Kuzinich

v. County of Santa Clara, 689 F.2d 1345 (9th Cir. 1982), because of

“very little evidence bearing on the concentration of adult enter-

prises,” despite the county’s expressed concern for complaints about

traffic and littering. And in Ebel v. City of Corona, 698 F.2d 390

(9th Cir. 1983), the court rejected the findings of the federal district

court that alternative sites for adult bookstores existed in Corona

and remanded for “proof of likelihood of some harm.” Cities have

cause to wonder whether any ordinance and any evidence would

meet the Ninth Circuit standards.

22 The Ninth Circuit opinion errs in “inferring that a motivating

factor behind the ordinance was suppression of the content of the

speech.” 748 F.2d at 537. To reach its result, the court glossed

over the findings of the ordinance by finding a motive for the

ordinance in expressions of dislike for the subject matter. Under-

taking an inquiry on the legislative motive is “a hazardous matter.”

United States v. O’Brien, 391 U.S. 367, 384 (1968). It is especially

hazardous in the context of public meetings where all and sundry

are invited to address their government. To infer an intent on

the part of the City of Renton to suppress First Amendment rights

from such statements is illogical and, on the facts of this case,

wrong.

|

14

The Ninth Circuit’s opinion is peppered with refer-

ences to Young, but minimizes this Court’s holding in

that case that the interests furthered by such an ordi-

nance are important and substantial. As Justice Stev-

ens, speaking for this Court, said: “[T]he city’s inter-

est in attempting to preserve the quality of urban life is

one that must be accorded the highest respect.” 427 U.S.

at 71.2 The Ninth Circuit, by contrast, glossed over Ren-

ton’s substantial interest in preserving the quality of life

in the community, and focused instead on the fact that

Renton “does not solve the problem in the same manner”

as Seattle and Detroit. Detroit, for example, required

dispersal of adult theaters, whereas the ordinance in

Renton would result in their concentration. But, in

Young, this Court gave no indication that the specific

solution adopted by Detroit was the only acceptable way

to deal with the problem. The opinion drew no such line.

To the contrary, the Court intended that cities would be

free to experiment with solutions adapted to their own

communities. The opinion specifically noted that:

“ ... [Wle have no doubt that the municipality

may control the location of theaters as well as the

location of other commercial establishments, either

by confining them to certain specified commercial

zones or by requiring that they be dispersed through-

out the city.” 427 U.S. at 62.

The Court added:

“It is not our function to appraise the wisdom of its

[the Detroit City Council’s] decision to require adult

theaters to be separated rather than concentrated

in the same areas... . [T]he city must be al-

lowed a reasonable opportunity to experiment with

solutions to admittedly serious problems.” /d. at 71.

23 See also concurring opinion of Justice Powell: “Without stable

neighborhoods, both residential and commercial, large sections of

a modern city quickly can deteriorate into an urban jungle with

tragic consequences to social, environmental, and economic values”.

Id. at 80.

15

The Ninth Circuit opinion also ignores the reasoning

in Justice Powell’s concurring opinion in Young.** Jus-

tice Powell termed it “undeniable” that “ a zoning or-

dinance that merely specifies where a theater may locate,

and that does not reduce significantly the number or

accessibility of theaters presenting particular films,

stifles no expression.” ** Young, 427 U.S. at 81, fn 4. He

also stated “. . . the dissent. misconceives the issue in this

case by insisting that it involves en impermissible time,

place, and manner restriction based on the content of ex-

pression. It involves nothing of the kind.” Rather, it in-

volves only the government’s right to “tailor its reaction

to different types of speech according to the degree to

which its special and overriding interests are impli-

cated.” °°

*4 Justice Powell pointed out that “zoning, when used to preserve

the character of specific areas of a city, is perhaps ‘the most es-

sential function performed by local government. for it is one of

the primary means by which we protect that sometimes difficult to

define concept of quality of life.” Young, 427 U.S. at 80, citing

Village of Belle Terre v. Boraas, 416 U.S. 1, 13 ( 1974).

*5 “The burden ... is no different from that imposed by more

common ordinances. that restrict to commercial zones of a city

movie theaters generally as well as other types of business

presenting similar traffic, parking, safety, or noise problems.

After a half century of sustaining traditional zoning of this

kind, there is no reason to believe this Court would invalidate

such an ordinance as violative of the First Amendment.

The only difference between such an ordinance and the De-

troit ordinance lies in the reasons for regulating the location

of adult theaters. The special public interest that supports this

ordinance is certainiy as substantial as the interests that sup-

port the normal area zoning to which all movie theaters, like

other commercial establishments, long kave been subject.”

Td. at 80, fn 3.

*6 7d. at 81, fn. 6. Regulations have been upheld which ban

demonstrations i: or near court houses, Grayned v. City of Rock-

ford, 408 U.S. 104 (1972); limit the use of sound trucks, Kovacs

v. Cooper, 336 U.S. 77 (1949), reh’g denied, 336 U.S. 921 (1949);

and ban overlapping parades, Cox v. New Hampshire, 312 U.S. 569

(1941).

16

Like Detroit, Renton has “silenced no message, has

invoked no censorship, and has imposed no limitation

upon those who wish to view [‘adult’ films.]” Young,

concurring opinion of Justice Powell at 78-79. The Ren-

ton ordinance is addressed only to the places at which this

type of expression may be presented, a restriction that

does not interfere with content.”

D. Unlike the Decision in Young, the Ninth Circuit

Result Establishes an Impossible Standard

The Ninth Circuit opinion leaves cities with a Hob-

son’s choice. As required by the court below, there are

only two ways for a city which lacks “adult” theaters

to gather evidence on secondary harms from such enter-

prises. The city may permit entry of such theaters and

allow the decay which has accompanied them in many

other cities to set in, or the city may commission studies

and hire experts to predict the effects of “adult” theaters

on its community.

To wait for the harm to occur is exactly what wise ur-

ban planning seeks to avoid. Nor is waiting mandated by

any decision of this Court. The very purpose of city plan-

ning is to foresee and prevent the evils which can arise

from conflicting or potentially harmful land uses rather

than to permit their occurrence before seeking a remedy.

In the area of planning and zoning, cities learn from the

27 In addition to the area available for their exhibition in Renton

itself and in neighboring Seattle, the movies in question are avail-

able as video cassettes at three video rental and sale establishments

within the City of Renton: Mary’s Commodore Video Rentals, Sun-

set Video, and Star Video.

Also, an estimated 20 percent of the U.S. adult population own VCR

machines. As a recent article in Newsweek noted, these films are

widely available. A Newsweek poll indicates nine percent of all

Americans bought or rented an X-rated cassette within the last

year. Newsweek, March 18, 1985, at page 61. Such X-rated films

are also available by mailing according to advertisements in such

magazines as Hustler and Outi.

he ne a we

17

experience of other cities. Indeed, model zoning codes are

premulgated for that very purpose.** The city need not

await deterioration to act. Genusa v. City of Peoria, 619

F.2d 1203, 1211 (7th Cir. 1980). The Renton ordinance,

like those in many cities, was designed to protect and

preserve the quality of its neighborhoods and commercial

districts from foreseeable blight. To await the advent of

adverse effects is. each community before taking action is

. akin to insisting that Skyline Towers must collapse in

one’s community before building regulations can be

changed.

Under the Ninth Circuit’s decision, the only alter-

native to passive acceptance of urban blight would be

to commission a study of the potential effects of adult

theaters in each concerned community. Such a study,

however, would be not only costly and time consuming

for a small city like Renton, but also redundant. Any

such study would be cumulative of existing studies which

predict the :vtential harmful effects of “adult” enter-

tainment uses based on the opinions of experts and the

experience of other cities.” pA

Instead, Renton chose the direct course. As stated in

the ordinance, the Council relied on published studies and

on the experience of other cities.*° Significantly, the

Council gave special consideration to the situations in

Seattle and Tacoma, cities which are located in the same

metropolitan area as Renton itself. The opinion of the

Ninth Circiut supplies no rationale for rejecting the rele-

8 Nichols, Cyc. Legal Forms, §§ 9.5026 et seq.; F. Strom, Zoning

Control of Sex Businesses (1977).

2° For example, in Young, this Court referred to “the opinion

of urban planners and real estate experts” that the concentration of

adult uses in the same neighborhood “tends to attract an un-

desirable quantity and quality of transients, adversely affects prop-

erty values, causes an increase in crime, especially prostitution, and

encourages residents and businesses to move elsewhere.” 427 U.S.

at 55.

%© Appendix to Jurisdictional Statement, App. M and N.

18

vance in Renton of the adverse effects of “adult” enter-

tainment uses experienced in Seattle, Tacoma or Detroit.

E. The Ninth Circuit Decision is Inconsistent with

Other Opinions of this Court

The Ninth Cireuit decision, moreover, is inconsistent

with other opinions of this Court. ™n Los Angeles v. Tax-

payers for Vincent, U.S. ——, 104 S. Ct. 2118

(1984), this Court, reversing the Ninth Circuit, upheld

an ordinance which affected the First Amendment rights

of those wishing to post signs on public property.’ The

Court concluded that prohibiting the posting of political

and other signs on utility poles did not significantly com-

promise First Amendment values. The opinion found it

well settled that the state may legitimately exercise its

police powers to advance aesthetic values. Los Angeles v.

Taxpayers for Vincent, supra, 104 S. Ct. at 2129.% If a

city, for aesthetic purposes, may zone land uses connected

with such important societal values as communication of

political ideas, the same authority clearly should extend

to uses, akin to obscenity, which lie at the fringes of

First Amendment protection.

Il. THE NINTH CIRCUIT’S FAILURE TO ABSTAIN

LED TO AN ANOMALOUS RESULT

The decision below presents another serious problem

which amici wish to call to the Court’s attention but

which has not been raised by appellant in its jurisdic-

tional statement. The Ninth Circuit ruled, without ex-

planation, that “abstention is inappropriate in this case.”

Without questioning appellants’ decision not to present

the abstention issue to this Court, amici would point out

that it offers another reason for the Court to take

31 See also Metromedia, Inc. v. City of San Diego, 458 U.S. 490

(1981).

82 See also Penn Central Transportation Co. v. New York City,

488 U.S. 104 (1978); Village of Belle Terre v. Boraas, 416 U.S. 1

(1974) ; and Berman v. Parker, 348 U.S. 26 (1954).

EG Ne

19

jurisdiction in this case. The First Amendment stand-

ards set forth by this Court in Young apply to all courts

in this country, whether state or federal. Yet here two

courts, one state and one federal, both with jurisdiction

over events in the state of Washington, arrived at dia-

metrically opposite decisions on virtually indistinguishable

facts. The Supreme Court of Washington in its decision

in Northend Cinema v. City of Seattle, 90 Wash.2d 709,

585 P.2d 1153 (1978), upheld a Seattle “adult” motion

picture ordinance limiting the area for such uses, in a city

of nearly half a million, to an area of approximately 250

a holding, it would be consistent with established law

acres. The Ninth Circuit, by contrast, struck down the

Renton ordinance, which left an area twice as large as

Seattle’s available for “adult” theaters. Such diverse

results based on essentially similar facts can only en-

courage a race to the courthouse in search of a favor-

able forum. |

Thus, in this case Playtime filed a pre-enforcement chal-

lenge in the federal court before even completing its

purchase of the theater. Playtime’s preemptive strike in

federal court occurred before the city even knew of the

plans to show “adult” movies, and obviously before the

city could file an enforcement proceeding in state court.

Such tactics can also be used by other theaters all across

the country.** Without abstention by the federal courts,

the result is to oust state court jurisdiction and to under-

mine this Court’s oft-stated doctrine of deference to ap-

propriate state tribunals. Where a state court has pre

88 This is emphasized by the fact that Playtime Theatres was one

of the unsuccessful litigants in the Northend Cinema case in which

the Supreme Court of Washington upheld the Seattle ordinance.

Since then, “laytime has consistently filed its litigation in federal

court. Spokane Arcades, Inc. v. Brockett, 631 F.2d 185 (9th Cir.

1980), aff'd 454 U.S. 1022 (1981); J-R Distributors, Inc. v. Eiken-

berry, 725 F.2d 482 (9th Cir. 1984), app. pending, U.S. Sup. Ct.

Nos. 84-28, 84-143 (argued Feb. 20, 1985) ; Playtime Theatres, Inc.

v. City of Tacoma, 9th Cir., No. 81-8544 (unpublished decision,

Oct. 25, 1982) ; Playtime Theatres, Inc. v. City of Bremerton, U.S.

D.C., W.D. Wash., No. C-81-1938V.

20

viously ruled on the validity of laws regulating the loca-

tion of “adult” theaters, failure of federal courts to

abstain can result in opposite rules of law being followed,

as has occurred here. This is unseemly and anomalous.

The effect is “one rule in Athens and another rule in

Rome.” **

This pattern suggests to amici that the abstention doc-

trine set forth in Younger v. Harris, 401 U.S. 37 (1971),

should apply to cases such as this, where vital state in-

terests are involved, and state law does not bar the inter-

position of the constitutional claim. Middlesex County

Ethics Committee v. Garden State Bar Ass’n, US.

——, 102 S.Ct. 2515, 2521 (1982). The outcome of vir-

tually identical cases from communities located side, by

side should not depend on an unseemly legal scramble

for a sympathetic court.

CONCLUSION

In the light of the Ninth Circuit’s opinion, further

guidance is needed by communities struggling with a

problem of significant societal dimensions, involving sub-

stantial neighborhood deterioration. Thus amici urge the

Court to grant appellants’ request for plenary hearing.

Respectfully submitted,

LAWRENCE R. VELVEL JOYCE HOLMES BENJAMIN

MEMEL, JACOBS, PIERNO, THE STATE AND LOCAL

GERSH & ELLSWORTH LEGAL CENTER

1800 M Street, N.W. 444 North Capitol St., N.W.

Washington, D.C. 20036 Suite 349

(202) 822-3939 Washington, D.C. 20001

Of Counsel (202) 638-1445

Counsel of Record for the

Amici Curiae

March 28, 1985

% Laird v. Tatum, Memorandum of Justice Rehnquist, 409

U.S. 824 (1972).