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

| OfceSopre

FIL

Court, Y.

EF Dp s.

No. 84-1360 JUL

31985

ALEX

IN THE ANCER L. STEVag,

Supreme Court of the United States

OCTOBER TERM, 1984

CITY OF RENTON, et ai.,

Appellants,

v.

PLAYTIME THEATERS, INC., et al.,

Appellees.

ON APPEAL FROM THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

BRIEF OF THE

FREEDOM COUNCIL FOUNDATION

AMiCUS CURIAE,

IN SUPPORT OF APPELLANTS

ROBERT K. SKOLROOD WENDELL R. BIRD

General Counsel to (Counsel of Record)

FREEDOM COUNCIL PARKER, JOHNSON, COOK &

FOUNDATION DUNLEVIE

525M Greenbrier Circle Suite 700

Chesapeake, Virginia 23320 1275 Peachtree Street, Northeast

(804) 420-5460 Atlanta, Georgia 30309

(404) 872-7000

Attorneys for Amicus Curiae

= BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........

INTEREST OF AMICUS CURIAE _._..

STATEMENT OF THECASE .......... er

SUMMARY OF THE ARGUMENT...........

I Ss x g'oo's 5's 5 ke th as eee Lee

ZONING REGULATION OF NONOBSCENE EROTIC

MATERIAL IS CONSTITUTIONAL UNDER THE

FIRST AMENDMENT, BECAUSE SUCH EROTIC

MATERIAL IS ONLY PARTIALLY PROTECTED

EXPRESSION

I, ONLY PARTIAL PROTECTION OF THE FIRST

II.

AMENDMENT EXTENDS TO NONOBSCENE

EROTIC MATERIAL AND COMMERCIAL

ADVERTISING.

A. This Court Has Recognized a Category of

Partially Protected Expression such as

Commercial Advertising.

B. This Court Has Placed Nonobscene Erotic

Material in that Partially Protected Category.

NO BURDEN ON FIRST AMENDMENT

EXPRESSION ARISES FROM ZONING

REGULATION OF NONOBSCENE EROTIC

MATERIAL, BECAUSE GREATER REGULATION IS

CONSTITUTIONALLY PERMISSIBLE FOR SUCH

EROTIC MATERIAL.

A. Greater Regulation Is Permissible for Commercial

Advertising and Erotic Material than for Fully

Protected Expression.

B. Greater “Time, Place, and Manner” Regulations

Are Permissible for Commercial Advertising and

Erotic Material than for Fully Protected

Expression.

11

ll

13

C. Content-Based Classification and Regulation Is

Permissible for Commercial es and

Erotic Material.

D. The Overbreadth Rule Is Inapplicable to

Commercial Advertising and Erotic Material.

III. A JUSTIFICATION FOR MOST NONSUPPRESSIVE

BURDENS EXISTS FOR ZONING AND OTHER

REGULATION OF NONOBSCENE EROTIC

MATERIAL, BECAUSE SUCH BURDENS MUST

MEET THE LEGITIMATE STATE INTEREST TEST

OR THE COMMERCIAL ADVERTISING TEST FOR

PARTIALLY PROTECTED EXPRESSION.

A. The O’Brien Test Does Not Apply to Regulation

of Commercial Advertising or Erotic Material.

B. The Legitimate State Interest Test or the

Commercial Advertising Test Applies to

Regulation of Erotic Material. ,

C. That Test for Partially Protected Speech Is Met

by Renton’s and Other Regulations of Erotic

Material.

CONCLUSION |

15

19

20

23

25

iil

TABLE OF AUTHORITIES

Page

Cases

Airport Book Store, Inc. v. Jackson, 242 Ga. 214, 248

eww eweeteeebouns 22, 23

American Mini Theatres, Inc. v. Gribbs, 518 F.2d

1014 (6th Cir. 1975)... | A tie 5 2 24, 25

Bantam Beoks, Inc. v. Sullivan, 372 U.S. 58 (1963) 10

Barsky v. Board of Regents, 347 U.S. 442 (1954) 23

Bates v. City of Little Rock, 361 U.S. 516 (1960) . 19

Bates v. State Bar, 433 U.S. 350 (1977) ....... 6, 12 15, 17

Bigelow v. Virginia, 421 U.S. 809 (1975) ........... 17, 21

Bolger v. Youngs Drug Products Corp., 463 U.S. 60

(1983) . pede apy rere rs rere 6, 12, 15, 21

Borrago v. City of Louisville, 456 F. supe. 30 (W.D.

ee Pas . 14

Broadrick v. Oklahoma, 413 U.S. 601 (1973) | 18 19

Beauharnais v. Illinois, 343 U.S. 250 (1952)... ... 5, 16

Brockett v. Spokane Arcades, Inc., __ U.S. —— (1985) 5

California v. LaRue, 409 U.S. 109 (1972) ...._ 11, 16, 18, 23

Capital Broadcasting Co. v. Acting Attorney General,

405 U.S. 1000 (1972) .___.. Pt gat at ee 12

Carey v. Population Services International, 431 U.S.

678 (1977)...... de Ande re | ? 10

Central Hudson Gas & Elec. Corp. v. Pub. Service

Comm'n, 441 U.S. 557 (1980) ..... _. 5,6, 11, 14, 17, 21

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) . 4

Commonwealth v. Holmes, 17 Mass. 336 (1821) _. 8

iv

Commonwealth v. Sterlace, 481 Pa. 6, 14, 391 A.2d

ES So 3 Sk UNE ota a ete A 21

County Board v. Richards, 217 Va. 645, 648, 231

S.E.2d 231, vacated on other grounds, 434 U.S. 5

RR Ta Ege Se pd NN Rea ea 22

Cox v. Louisiana 379 U.S. 559 (1965).............. 4

Cox v. New Hampshire, 312 U.S. 569 (1941). _...... 13

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) . 22

Dennis v. United States, 341 U.S. 494 (1951). ..... 4

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ...... 9,10

Dover News, Inc. v. City of Dover, 117 N.H. 1066, 381

Se IIS 6 usa 34h ers Hees ce we 14

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) 19

FCC v. Pacifica Foundation, 438 U.S. 726

RR NGA ASR ER en a aay ARO RE rh 9, 16, 18

Friedman v. Rogers, 440 U.S. 1 (1979) . 6, 11, 12, 15, 17, 21

Gertz v. Robert Welch, Inc., 418 U.S. 323

SUE Shee eens nee pie es ee 7, 16, 22

Giboney v. Empire Storage & Ice Co., 336 U.S. 490

RR EER, earie Lrege ego’ a Senso arene er eerene 4

Ginsberg v. New York, 390 U.S. 629 (1968)... ...... 10

Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 13

Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th

8 ei Aa cee pine -... 18, 16, 20, 22, 24

In re Primus, 436 U.S. 412 (1978) Po Pte To 21

In re R.M.J., 455 U.S. 191 (1982) ................. 11

Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968) 10

Jenkins v. Georgia, 418 U.S. 153 (1974)............ 10

v

Kaplan v. California, 413 U.S. 115 (1973) .......... 10

Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957). . 17

Konigsberg v. State Bar, 366 U.S. 36 (1961)........ 4,19

Kovacs v. Cooper, 336 U.S. 77 (1949) .............. 23

Kramer v. Government of the Virgin Islands, 479 F.2d

ea aS ed de a 10

Laird v. Tatum, 408 U.S..1 (1972). ................ 17

Lehman v. City of Shaker Heights, 418 U.S. 298

AN yc Ba LN oly AO kL Oe tn a ¥ 15

Linmark Assocs., Inc. v. Township of Willingboro, 431

Ae RI hy Se al Ne IY te a ge ag 21

Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976)... ... 7

Maryland Drydock Co. v. NLRB, 183 F.2d 538 (4th

I oc BO et eae an oe eee 10

Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970) 4

Members of City Council v. Taxpayers for Vincent,

— we «+ 5 hf Cee eeerree 21

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

Mua ere rn re Dae ed cla 15

Miller v. California, 413 U.S. 15 (1973) | Wee 4,5,8

Mishkin v. New York, 383 U.S. 502 (1966) .__. 10

NAACP v. Button, 371 U.S. 415 (1963) ............ 19

Near v. Minnesota, 283 U.S. 697 (1931)............ 17

New York v. Ferber, 458 U.S. 747 (1982) ......... 5, 10, 16

New York State Liquor Authority v. Bellanca,

gt | rere . 9, 12, 20, 22

New York Times Co. v. Sullivan, 376 U.S. 254

EE isk oko c's era's ee eee be eS

vi

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

709, 585 P.2d 1153 (1978) ...................... 13, 23

Nortown Theatre Inc. v. Gribbs, 373 F. Supp. 363

I I Fe toc eee Ce ie eee 24

Ohralik v. Ohio State Bar Association, 436 U.S.

rl tC AER SR rea iat ate 6, 11, 12, 17, 20, 21

Paris Adult Theatre I v. Slaton, 413 U.S. 49

I aor Be es a ree me See &

Parker v. Levy, 417 U.S. 733 (1974) ..... Fit we ee 18

Pittsburgh Press Co. v. Pittsburgh Comm’n on Human

Relations, 413 U.S. 376 (1973) ............. — es %

Police Dep’t v. Mosiey, 408 U.S. 92 (1972) ......... 15

Roth v. United States, 354 U.S. 476 (1957)... .. ae

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

NE re ait MR ee EE AEE a 7, 9, 20

Scales v. United States, 367 U.S. 203 (1961) .. 4

Stansberry v. Holmes, 613 F.2d 1285 (5th Cir. 1980) 9

Time, Inc. v. Hill, 424 U.S. 448 (1976) ...... a7 16

United States v. O’Brien 391 U.S. 367 (1968)... .... 19

United States v. Orito, 413 U.S. 139 (1973) ..._.. 19

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) .. 23, 24

Village of Hoffman Estates v. Flipside, 455 U.S. 489

(1982) _.. | | yore ee ere 12,17

Village of Schaumburg v. Citizens for a Better Envi-

ronment, 444 U.S. 620 (1980)... sss 17

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, inc., 425 U.S.

748 (1976) 6, 7, 12, 14, 15, 17, 21

vil

Warner-Lambert Co. v. FTC, 562 F.2d 749 (D.C. Cir.

EL Poet To es ne a ee ah OS oe, 12

Watts v. United States, 394 U.S. 705 (1969)........ 4

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

DE cael oa Ca erat on ae 1, 3, 8, 11, 15, 19

Constitutional Provisions

U.S. Const. amend.I....... vba Bit aft Lay FU. Brett es 4

Ces eee ee ee Ak cbs oh ek ces | | 4

Statutes and Ordinances

City of Renton Ordinance........................ 1

Other Authorities

D. BARBER, PORNOGRAPHY AND Society (1972)... 5

Comment, Constitutional Law—Explicit Sex and the

First Amendment, 42 Mo. L. Rev. 481 (1978) ..... 22

Comment, Constitutional Law—First Amend-

ment—Content Neutrality, Young v. American

Mini Theatres, Inc., 28 Case W. Res. L. Rev. 456

Se OS een ae ny SCID PITT rina shots ao Nee 9

Comment, Constitutional Law: Municipal Zoning

Ordinance May Restrict Location of Adult Motion

Picture Theatres, 16 WASHBURN L.J. 479 (1977). . 16

Comment, Using Constitutional Zoning to Neutral-

ize Adult Entertainment—Detroit to New York, 5

FORDHAM Urs. L. J.455 (1977)... .... | 18

Loewy, A Better Test of Obscenity: Better for the

States—Better for Libertarians, 28 HastinGs L. J.

1315 (1977)... ve ey 22

viii

—_—

Note, Developments in the Law—Zoning, 91 Harv. L.

te to Sr ae 14

Note, First Amendment Protection for Commercial

Advertising: The New Constitutional Doctrine, 44

U. Cut. L. Rev. 205 (1976)...................0... 13, 21

F. SCHAUER, THE LAw or Osscenity (1976)... ss. 8

Schauer, Response: Pornography and the First

Amendment, 40 U. Pitt. L. Rev. 605 (1979) ___.. li

ix

INTEREST OF AMICUS CURIAE!

The Freedom Council Foundation is gravely concerned

about the threat posed by obscenity and nonobscene erotic

material? to the family and to society generally. The Court’s

disposition of this case may dramatically affect the power of

cities and states to regulate that threat.

The Freedom Council Foundation is a nonprofit corpora-

tion organized to defend, restore, and preserve religious ler-

ties, family rights, and other freedoms guaranteed by the

Constitution. The Foundation is affiliated with the Freedom

Council, which has associated organizations in each of the 50

states, and student groups on over 70 college campuses. The

Foundation is also related to the Christian Broadcasting Net-

work, which is one of the two largest cable television networks

in the United States, reaching over 13 million homes. The

Council and Foundation have filed amicus curiae briefs in

Lynch v. Donnelly and other cases before this Court and

other courts.

The counsel of record for Amicus Curiae, Wendell R. Bird,

concentrates in constitutional litigation, has published arti-

cles on the First Amendment in the Yale Law Journal and

Harvard Journal of Law & Public Policy, and is an Adjunct

Professor at Emory University School of Law in constitu-

tional law. The Foundation hopes that this expertise will be

of assistance to the Court in this case.

1. A motion for leave to file accompanies this brief, pursuant to S.Ct.

Rule 36.2.

2. Amicus Curiae, in arguing that nonobscene erotic material is not fully

protected expression under the reasoning of Young v. American Mini

Theatres, Inc., assumes arguendo but does not concede that such material

is properly viewed as even partly protected by the First Amendment.

IN THE

Suprente Court of the United States

OCTOBER TERM, 1984

NO. 84-1360

CITY OF RENTON, et al.,

Appellants,

v.

PLAYTIME THEATERS, INC., et al.,

Appellees.

STATEMENT OF THE CASE

This appeal involves the constitutionality of a municipal

zoning ordinance regulating adult theaters that is very similar

to the zoning ordinance upheld by this Court in Young v.

American Mini Theatres, Inc., 427 U.S. 50 (1976) (plurality

opinion of Stevens, Burger, White & Rehnquist, JJ.). The

Ninth Circuit summarized the City of Renton’s ordinance as

follows:

In April, 1981, the City of Renton enacted ordinance

number 3526 which prohibited any “adult motion pic-

ture theater”' within one thousand feet of any residen-

tial zone or single or multiple family dwelling, any

church or other religious institution, and any public park

or area zoned for such use. The ordinance further pro-

hibited any such theater from locating within one mile

[later amended to one thousand feet] of any public or

private school.®

3. The Ninth Circuit quoted the ordinance’s definitions as follows:

1. The first ordinance defined an “adult motion picture theater” as

- 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 depict-

2

Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 529-

30 (9th Cir. 1984). The “distinguished or characterized by”

language, and the “specified sexual activities” and “specified

anatomical areas’ definitions, are essentially identical to the

ordinance upheld in Mini Theatres. The city heard the testi-

mony of several witnesses before passing the ordinance, and

later added numerous reasons that were generally based on

pornography’s blight on neighborhoods and families (particu-

larly children). Because Renton is a small town, it did not

undertake a costly study of probable adult theater blight; and

because it is a suburb of Seattle, it assumed it would encoun-

ter harms similar to those experienced by Seattle.*®

ing, describing or relating to “specified sexual activities” or “speci-

fied anatomical areas” as hereafter defined, for observation by pa-

trons therein.

The ordinance defined these terms as follows:

2. “Specified Sexual Activities”:

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

(b) Acts of human masturbation, sexual intercourse or sodomy;

(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 immedi-

ately above the top of the areola; and

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

completely and opaquely covered.

The second ordinance expanded the defined term of “used” as:

a continuing course of conduct of exhibiting “specific [sic speci-

fied] sexual activities” and “specified anatomical area[”’] in a man-

ner which appeals to a prurient interest.

Id. at 529 n.1.

4. The term “erotic material” is used throughout this brief, as in Mini

Theatres, to refer to nonobscene material “distinguished or characterized

by an emphasis on matter depicting, describing or relating to ‘specified sex-

ual activities’ or ‘specified anatomical areas’ ”—i.e., to nonobscene sexually

explicit material.

5. Br. of Appellants at 6; 748 F.2d at 530-31 n.3.

6. Br. of Appellants at 7-8; 748 F.2d at 531 n.3.

3

SUMMARY OF THE ARGUMENT

This pornography zoning ordinance should be upheld as

constitutional on the ground that nonobscene erotic material

is only partially protected expression, under the analysis of

the four justice plurality in Young v. American Mini Thea-

tres, Inc.? There, Justice Stevens, joined by Chief Justice

Burger, and Justices White and Rehnquist, held that nonob-

scene “erotic material” does not constitute fully protected

expression:

[T}here is surely a less vital interest in the uninhibited

exhibit...” of material that is on the borderline between

pornography and artistic expression than in the free dis-

semination of ideas of social and political significance

[I]t is manifest that society’s interest in protecting this

type of [erotic] expression is of a wholly different, and

lesser, magnitude than the interest in untrammeled po-

litical debate that inspired Voltaire’s immortal com-

ment. . . . Even though the First Amendment protects

communication in this area from total suppression, we

hold that the State may legitimately use the content of

these materials as the basis for placing them in a differ-

ent classification from other motion pictures.*®

This partial protection of erotic material is analogous to the

partial level of constitutional protection of commercial adver-

tising, which this Court has consistently acknowledged over

the past decade. Partial protection permits a greater degree

of regulation than fully protected expression would allow, and

requires the upholding of regulation of erotic material such as

Renton’s ordinance for pornography zoning.

7. 427 U.S. at 70-71.

8. Id. at 61, 70-71 (emphasis added).

4

ARGUMENT

ZONING REGULATION OF NONOBSCENE EROTIC

MATERIAL IS CONSTITUTIONAL UNDER THE

FIRST AMENDMENT, BECAUSE SUCH EROTIC

MATERIAL IS ONLY PARTIALLY PROTECTED

EXPRESSION.

The brief discusses (A) the only partial protection of the

First Amendment for nonobscene erotic material and com-

mercial advertising; (B) the lack of a burden on such erotic

material from greater regulation, including Renton’s zoning

regulation, that partial protection allows; and (C) the justifi-

cation for any nonsuppressive burden by the legitimate state

interest test or commercial advertising test that applies to

partially protected expression.

I. ONLY PARTIAL PROTECTION OF THE FIRST AMEND-

MENT EXTENDS TO NONOBSCENE EROTIC MATERIAL

AND COMMERCIAL ADVERTISING.

The full First Amendment protection is not applied to

every spoken or printed word or illustration, because that

Amendment does not extend absolutely to every utterance.®

No first Amendment protection extends to fighting words,’®

to terroristic or extortionate threats,'' to immediate seditious

advocacy, '* or to criminally instrumental words,'* because

such utterances are merely verbal conduct tantamount to

nonverbal physical attack, subversion, or crime. Similarly, no

speech or press protection extends to noninformative or false

9. E.g., Miller v. California, 413 U.S. 15, 23 (1973); Konigsberg v. State

Bar, 366 U.S. 36, 49-51 (1961).

10. E.g., Cox v. Louisiana, 379 U.S. 559, 563 (1965); Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942).

1l. E.g., Watts v. United States, 394 U.S. 705, 707 (1969); Masson v. Sla-

ton, 320 F. Supp. 669, 672 (N.D. Ga. 1970).

12. E.g., Scales v. United States, 367 U.S. 203, 228-29 (1961); Dennis .

United States, 341 U.S. 494, 501-02 (1951) (plurality opinion).

13. E.g., Cox v. Louisiana, 379 U.S. 559, 563 (1965); Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 502 (1949).

5

commercial advertising,’* to nonprivileged defamation,’® or

to obscenity and child pornography.'* Obscene material is not

protected speech or press because it, taken as a whole, is

physical stimulation through nonideational verbal or pictoral

incitement.*?

A. This Court Has Recognized a Category of Partially

Protected Expression such as Commercial

Advertising.

While the “First Amendment protects works which, taken

as a whole, have serious literary, artistic, political, or scientific

value, regardless of whether the government or a majority of

the people approve of the ideas these works represent,’’’® that

does not require that the freedoms of speech and press fully

protect other expression that lacks such serious ideational or

communicative value and instead is wholly commercial, es-

sentially conduct, or erotic. Only partial First Amendment

protection extends to primarily commercial but informative

advertising, to privileged defamation, and to erotic publica-

tions and films.

For example, “the Constitution accords less protection to

commercial speech than to other constitutionally safe-

guarded forms of expression,” as this Court has held in many

14. E.g., Central Hudson Gas & Elec. Corp. v. Pub. Service Comm'n, 447

U.S. 557, 563 (1980); Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376, 385 (1973).

15. E.g., New York v. Ferber, 458 U.S. 747, 763 (1982); Beauharnais v.

Illinois, 343 U.S. 250, 266 (1952).

16. E.g., Brockett v. Spokane Arcades, Inc., __. U.S. ____ (1985); New

York v. Ferber, 458 U.S. at 764; Miller v. California, 413 U.S. at 23; Roth v.

United States, 354 U.S. 476, 481, 485 (1957); Schauer, Speech and

“Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation

of Constitutional Language, 67 Gro. L.J. 899 (1979) (defending two-level

approach to obscenity as unprotected).

17. E.g., D. Barsper, PoRNOGRAPHY AND Society 91 (1972); Schauer,

supra note 16, at 922-23 (“the prototypical pornographic item on closer

analysis shares more of the characteristics of sexual! activity than of the

communicative process” and is “a sexual surrogate’”’).

18. E.g., Miller v. California, 413 U.S. at 34.

6

decisions such as Bolger v. Youngs Drug Products Corp.,"* al-

though advertising enjoys some First Amendment

protection.”°

In rejecting the notion that such speech “is wholly

outside the protection of the First Amendment,” Vir-

ginia Pharmacy, supra, at 761, we were careful not to

hold “that it is wholly undifferentiable from other

forms” of speech. 425 U.S., at 771 n.24. We have not dis-

carded the “common-sense” distinction between speech

proposing a commercial transaction . . . and other vari-

eties of speech. /bid. To require a parity of constitutional

protection for commercial and noncommercial speech

alike could invite dilution, simply by a leveling process,

of the force of the Amendment’s guarantee with respect

to the latter kind of speech. Rather than subject the

First Amendment to such a devitalization, we instead

have afforded commercial speech a limited measure of

protection, commensurate with its subordinate position

in the scale of First Amendment values. . . .?'

Because of this partial protection, the First Amendment “‘al-

low[s] modes of regulation that might be impermissible in the

realm of noncommercial expression.””?

Similarly, only partial First Amendment protection ex-

tends to privileged defamation. While false statements are

19. 463 U.S. 60, 77 L.Ed.2d 468, 476 (1983).

20. E.g., Bates v. State Bar, 433 U.S. 350, 363-64 (1977); Virginia State

Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748,

761 (1976).

2i. E.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56 (1978)

(emphasis added). Accord, Central Hudson Gas & Elec. Corp. v. Pub. Ser-

vice Comm'n, 447 U.S. at 562-63; Friedman v. Rogers, 440 U.S. 1, 10-11 n.9

(1979); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. at 771-72 n.24; see generally Note, First Amend-

ment Protection for Commercial Advertising: The New Constitutional

Doctrine, 44 U._ Cut L. Rev. 205, 222-54 (1976).

22. Ohralik v. Ohio State Bar Ass’n, 436 U.S. at 556. Accord, e.z., Vir-

ginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,

425 U.S. at 771-72 & n.24; Section III(A) infra.

7

not fully protected speech,** this Court has ruled that some

“erroneous statement. . . must be protected if the freedoms

of expression are to have the ‘breathing space’ that they ‘need

. . . to survive,’ ”’** which the Court has interpreted as “ex-

tending a measure of strategic protection to defamatory false-

hood.’’® Hence some false statements are “constitutionally

privileged” and thereby effectively given partial protection

from suppression and some regulation.”* Like partially pro-

tected commercial advertising, however, privileged defama-

tion can be subjected to state regulation”’ that for fully pro-

tected speech and press would not be permitted.

B. This Court Has Placed Nonobscene Erotic Material

in that Partially Protected Category.

Although the “portrayal of sex, e.g., in art, literature and

scientific works, is not itself sufficient reason to deny material

the constitutional protection of freedom of speech and

press,”** that principle does not mean that sexual acts or sim-

ilar conduct are protected by the First Amendment at all,”®

and it does not demand the same degree of protection for

erotic material as for traditionally protected speech and

press.*° Instead, only partial First Amendment protection ex-

23. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. at 771; Gertz v. Robert Welch, Inc., 418 U.S.

323, 340 (1974).

24. E.g., New York Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964).

25. E.g., Gertz v. Robert Welch, Inc., 418 U.S. at 342.

26. This is true for false statements about public figures without actual

malice, and about private persons without the requisite degree of fault.

E.g., Gertz v. Robert Welch, Inc., 418 U.S. at 347; New York Times Co. v.

Sullivan, 376 U.S. at 279-80.

27. E.g., Gertz v. Robert Welch, Inc., 418 U.S. at 347; Section II(C) infra.

28. Roth v. United States, 354 U.S. at 487 (footnote omitted). E.g., Schad

v. Village of Mt. Ephraim, 452 U.S. 61, 66 (1981) (nudity).

29. E.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 & n.13 (1973);

Lovisi v. Slayton, 539 F.2d 349, 351-52 (4th Cir. 1976).

30. Ascribing only partial First Amendment protection to erotic material

does not reduce the constitutional protection for such expression; instead,

it results from the relatively recent shift of erotic material from the unpro-

8

tends to nonobscene erotic material as defined in Renton’s

ordinance.

This Court acknowledged the “lesser” First Amendment

protection for nonobscene erotic material in the plurality

opinion in Young v. American Mini Theatres, Inc.:

[There is surely a less vital interest in the uninhibited

exhibition of material that is on the borderline between

pornography and artistic expression than in the free dis-

semination of ideas of social and political significance

31

[E]ven though we recognize that the First Amendment

will not tolerate the total suppression of erotic materials

that have some arguably artistic value, it is manifest that

society’s interest in protecting this type of expression is

of a wholly different, and lesser, magnitude than the in-

terest in untrammeled political debate that inspired

Voltaire’s immortal comment. Whether political oratory

or philosophical discussion moves us to applaud or to de-

spise what is said, every schoolchild can understand why

our duty to defend the right to speak remains the same.

But few of us would march our sons and daughters off to

war to preserve the citizen’s right to see “Specified Sex-

ual Activities” exhibited in the theaters of our choice.*?

The Court’s finding of a “lesser” First Amendment protection

for erotic material was clearly the premise for its findings that

reasonable regulation of such material does not abridge free-

doms of speech and press and that content-based regulation

tected category to some protection. E.g., Schauer, supra note 16, at 907-08

& n.50 (courts have given First Amendment protection but reduced its level

in such areas as nonobscene erotic material and nonobscene indecent lan-

guage); compare F. ScHauverR, THE Law or Opscenity 21-22 (1976) (in ob-

scenity prosecutions in the nineteenth century, “almost anything that con-

cerned sexual relationships in any way Was presumed to be obscene”) and

Commonwealth v. Holmes, 17 Mass. 336 (1821) (example of same) with

Miller v. California, 413 U.S. at 24 (narrow test for obscenity).

31. Id. at 61 (plurality opinion) (emphasis added).

32. Id. at 70 (plurality opinion) (emphasis added).

9

of sexually explicit material does not violate equal

protection.**

Other decisions, besides Mini Theatres and the advertising

and libel analogies, support the proposition that erotic mate-

rial is only partially protected expression. This Court in FCC

v. Pacifica Foundation,* in sustaining a statutory prohibi-

tion against broadcast of nonobscene “indecent” speech

under the First Amendment,** permitted regulation of sexu-

ally explicit expression® that would not have been constitu-

tionally permissible for fully protected speech or press. That

ruling indicates a lesser First Amendment protection for such

nonobscene material; and the plurality opinion stated that

such “patently offensive references to excretory and sexual

organs and activities” “lie at the periphery of First Amend-

ment concern,” and that “[t]heir place in the hierarchy of

First Amendment values was. . . ‘no essential part of any

exposition of ideas’. . . .”°? The Court in California v. La-

Rue,** in upholding a regulation of sexually explicit dancing,

films, and pictures in bars with liquor licenses, also recog-

33. E.g., id. at 96 (dissenting justices’ “forthright rejection of the notion

that First Amendment protection is diminished for ‘erotic materials’ ”’);

Stansberry v. Holmes, 613 F.2d 1285, 1288 (5th Cir.) (“Young affords cer-

tain ‘speech’ activities lesser protection”), cert. denied, 449 U.S. 886 (1980);

Note, Constitutional Law—First Amendment—Content Neutrality,

Young v. American Mini Theatres, Inc., 28 Case W. Res. L. Rev. 456, 478

(1978) (same); Comment, The Supreme Court, 1976 Term—Constitu-

tional Law, 90 Harv. L. Rev. 58, 200 (1976) (same).

34. 438 U.S. 726 (1978).

35. Id. at 744 (plurality opinion); id. at 756, 761 (Powell, J., concurring).

36. Id. at 743.

37. Id. at 743, 746.

38. 409 U.S. 109, 118 (1972). See New York State Liquor Auth. v. Bel-

lanca, 452 U.S. 714, 715-18 (1981) (upholding prohibition of topless dancing

in establishments with liquor licenses as “a reasonable restriction”); Young

v. American Mini Theatres, Inc., 427 U.S. 50 (1976) (upholding regulation,

inter alia, of “Group D cabarets” with partially nude performance, on the

basis of legitimate state interest); cf. Schad v. Borough of Mt. Ephraim, 452

U.S. 61, 65 (1981) (overturning ban on all live entertainment [whether or

not partially protected] in commercial zones); Doran v. Salem Inn, Inc., 422

10

nized the lesser First Amendment protection of such erotic

entertainment and materials as compared with political, ur-

tistic, literary, and scientific speech and press. The majority

opinion said that, while “at least some of the performances

[and films and pictures] to which these regulations address

themselves are within the limits of the constitutional protec-

tion of freedom of expression,” they are not “the constitu-

tional equivalent of a performance by a scantily clad ballet

troupe in a theater.”** Consequently, “as the mode of expres-

sion moves from the printed page to the commission of public

acts that may themselves violate valid penal statutes, the

scope of permissible state regulations significantly

increases.”’*°

The obscenity decisions, in Miller v. California*' and other

cases, have implicitly found less constitutional protection for

sexually explicit material on the periphery of obscenity.

These decisions have permitted variation in the three factors

constituting obscenity, with the effect of shifting erotic mate-

rial into the obscenity category in some cases and out of that

unprotected category in others; such variation would not be

permissible for fully protected speech and press. That varia-

tion includes patent offensiveness as determined by different

community standards,*? prurient appeal as influenced by the

deviant nature of the recipient group,** and all three Miller

factors as adjusted for the minority age of the recipient

individuals.**

The reason why full First Amendment protection does not

apply to sexually explicit material is that primarily erotic

U.S. 922, 933-34 (1975) (overturning regulation not limited to liquor li-

censed establishments).

39. 409 U.S. at 118.

40. Id. at 117. Accord, Doran v. Salem Inn, Inc., 422 U.S. at 932.

41. 413 U.S. 15, 25-26 (1973). :

42. Id. at 30.

43. E.g., Mishkin v. New York, 383 U.S. 502, 508-09 (1966).

44. E.g., Ginsberg v. New York, 390 U.S. 629, 638 (1968); see New York v.

Ferber, 458 U.S. 747 (1982) (child pornography).

11

books, magazines, and motion pictures consist of commercial

noncommunicative sexual conduct, and that purchasers and

authors and vendors of such erotic materials are carrying on

commercial noncommunicative action rather than sincerely

conveying any First Amendment expression.** As with adver-

tising, anything more than partial protection for erotic mate-

rial “could invite dilution, simply by a leveling process, of the

force of the [First] Amendment’s guarantee with respect to

the latter kind of speech.’’**

II. NO BURDEN ON FIRST AMENDMENT EXPRESSION

ARISES FROM ZONING REGULATION OF NONOB-

SCENE EROTIC MATERIAL, BECAUSE GREATER REGU-

LATION IS CONSTITUTIONALLY PERMISSIBLE FOR

SUCH EROTIC MATERIAL.

A. Greater Regulation Is Permissible for Commercial

Advertising and Erotic Material than for Fully Pro-

tected Expression.

For commercial advertising, this Court’s decisions “allow |

modes of regulations that might be impermissible in the

realm of non-commercial expression.”*? The state can pro-

hibit misleading and deceptive as well as false advertise-

ments,*® suppress advertising concerning illegal transac-

45. See, e.g., Young v. American Mini Theatres, Inc., 427 U.S. at 70; Cali-

fornia v. LaRue, 409 U.S. at 118 (“in the form of movies or live entertain-

ment, ‘performances’ that partake more of gross sexuality than of commu-

nication”); Schauer, Response: Pornography and the First Amendment, 40

U. Pitt. L. Rev. 605, 608 (1979) (“none of the philosophical justifications of

a distinct concept of freedom of speech would put direct sexual excitement

within the confines of that principle”); Schauer, supra note 16. Erotic ma-

terial is closer to obscenity, prostitution, sexual solicitation, and non-artis-

tic public nudity than to traditional speech.

46. Central Hudson Gas & Elec. Corp. v. Pub. Service Comm'n, 447 U.S.

at 563 n.5, quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. at 456.

47. Friedman v. Rogers, 440 U.S. at 10-11 n.9, quoting Ohralik v. Ohio

State Bar Ass’n, 436 U.S. at 456. Accord, e.g., In re R.M.J., 455 U.S. 191, 203

(1982).

48. E.g., Bolger v. Youngs Drug Products Corp., te

L.Ed.2d at 479; In re R.M.J., 455 U.S. at 203; Friedman v. Rogers, 440 U.S.

12

tions,*® require necessary warnings or disclaimers on

commercial advertisements,®° and prohibit attorneys’ solici-

tation for nonideologica! litigation or broadcast advertising

for cigarettes.”

For erotic material, greater regulation and restriction

(short of total prohibition) is also nermissible than would be

constitutional for fully protected expression, as this Court’s

decisions in Mini Theatres, Bellanca, LaRue, and Pacifica

evince.”

at 9; Bates v. State Bar, 433 U.S. 350, 383 (1977); Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. at 771-72 &

n.24,

49. E.g., Bolger v. Youngs Drug Products Corp., ___. U.S. ___., 77 L.Ed.

2d at 479; Village of Hoffman Estates v. Flipside, 455 U.S. 489, 496 (1982);

Bates v. State Bar, 433 U.S. at 384; Pittsburgh Press Co. v. Pittsburgh

Comm'n on Human Relations, 413 U.S. at 388.

50. E.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. at 772 n.24; Warner-Lambert Co. v. FTC, 562 F.2d

749, 758-59 (D.C. Cir. 1977).

51. E.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978); Capital

Broadcasting Co. v. Mitchell, 33 F.Supp. 582 (D.D.C. 1971), aff'd mem. sub

nom. Capital Broadcasting Co. v. Acting Att’y Gen’l, 405 U.S. 1000 (1972).

52. Section I(B) supra. Schad is not contrary to this rule, because the

ordinance excluded all live entertainment from commercial zones, and

thereby “prohibit[ed] a wide range of expression that has long been held to

be within the protections of the First and Fourteenth Amendments,” 452

U.S. at 65, as well as prohibiting partially protected nude dancing in adult

establishments. Doran is also not contrary, because it found unconstitu-

tional a total prohibition of topless dancing in establishments without li-

quor licenses that would have been constitutional if limited to establish-

ments with liquor licenses. New York State Liquor Auth. v. Bellanca, 452

U.S. 714, 716-17 (1981) (per curiam). Vance v. Universal Amusement Co. is

not contrary, because it involved total prohibition of erotic material under

a public nuisance statute without a judicial finding of obscenity. 445 U.S.

308 (1980) (per curiam). And Erznoznik is not contrary. Note 77 infra.

13

B. Greater “Time, Place, and Manner” Regulations Are

Permissible for Commercial Advertising and Erotic

Material than for Fully Protected Expression.

Greater regulation of the “time, place, or manner” of ex-

pression is permitted ior partially protected expression™

than the First Amendment permits for fully protected

speech.**

The Renton zoning ordinance is a permissible “time, place

or manner” restriction. It closely resembles the ordinance in

Mini Theatres by prohibiting adult theaters within 1,000 feet

of a residential area (or school, church, or public park), just as

Detroit prohibited them within 500 feet of residential areas.

Mini Theatres found such pornography zoning to involve tne

permissible regulation of “nothing more than a limitation on

the place where adult films may be exhibited.’ That deci-

sion found ordinances concentrating adult theaters (as in

Renton) to come within the same constituiiona! rationale as

ordinances dispersing them.”

53. E.g., Note, First Amendment Protection for Commercial Advertis-

ing: The New Constitutional Doctrine, 44 U. Cut. L. Rev. 205, 240-41 (1976)

(greater “degrees of time, place, and manner regulation” are permitted by

“the different first amendment value of. . . commercial speech” or “ ‘sexu-

ally explicit films’ ”); see Section II(A) supra (greater regulation permitted

for commercial advertising than for fully protected speech).

54. E.g., Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cox v.

New Hampshire, 312 U.S. 569, 576 (1941).

55. 427 U.S. at 71 (emphasis added). Accord, id. at 78-79 (Powell, J., con-

curring) (“ordinance is addressed only to the places at which this type of

expression may be presented”); e.g., Hart Book Stores, Inc. v. Edmisten,

612 F.2d 821, 826 (4t.. Cir. 1979), cert. denied, 447 U.S. 929 (1980);

Northend Cinema, Inc. v. City of Seattie, 90 Wash. 2d 709, 585 P 2d 1153,

1158 (1978) (en banc) (“We conclude the zoning regulation of location of

adult movie theaters is a reasonable regulation of place for First Amend-

ment speech which does not violate First Amendment freedoms.”’), cert.

denied, 441 U.S. 946 (1979).

56. The opinion stated:

{W]e 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

14

The Renton ordinance will not “suppress or greatly restrict

access to lawful speech,”®’ in any event, any more than the

Detroit ordinance permissibly did. As in Mini Theatres, the

regulation does not “impose a limit on the total number of

adult theaters which may operate,” prohibit market entry by

“distributors or exhibitors of adult films” or publications, or

render “the viewing public. . . unable to satisfy its appetite

for sexually explicit fare.”** The appellees do not argue that

they and competitors cannot find land among the 520 availa-

ble acres inside Renton (which amounts to 5.4% of its total

acreage); pornography shops have no constitutional right to

locate in or near residential zones and schools. The “economic

loss for some who are engaged in this business” because of

Renton’s ordinance similarly does not amount to a constitu-

tional violation, as in Mini Theatres.*®* Partially protected

erotic material, like commercial advertising, ““may be more

durable than other kinds” of speech and press because

through its integral relation to “commercial profits. . . there

is little likelihood of its being chilled by proper regulation and

foregone entirely.’”®°

requiring that they be dispersed throughout the city. 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.

427 U.S. at 62 (emphasis added). Analogous regulation of the “manner” of

adult establishment commerce, through prohibiting offensive displays in

their storefronts, is also constitutional. E.g., Dover News, Inc. v. City of

Dover, 117 N.H. 1066, 381 A.2d 752, 755-56 (1977); see Borrago v. City of

Louisville, 456 F. Supp. 30, 32 (W.D. Ky. 1978); Comment, Developments

in the Law—Zening, 91 Harv. L Rev. 1427, 1562-63 & n.81 (1978) (“hours”

regulation of adult establishments would conform to First Amendment).

57. 427 U.S. at 71 n.35.

58. Id. at 62.

59. Id. at 78 (Powell, J., concurring).

60. E.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. at 772 n.24. See aiso Central Hudson Gas & Elec.

Corp. v. Pub. Service Comm'n, 447 U.S. at 571 n.13.

15

C. Content-Based Classification and Regulation Is Per-

missible for Commercial Advertising and Erotic

Material.

The rule for fully protected expression, that “the First

Amendment means that government has no power to restrict

expression because of its message, its ideaa, its subject mat-

te’ or its content,” is not absolute but “qualified.’”** That

ce..vent classification rule does not apply to partially pro-

tected speech.

For commercial advertisements, “the content of a particu-

lar advertisement may determine the extent of its protec-

tion.”** “[C]ontent-based restrictions on commercial speech

may be permissible,” with unequal regulatory treatment of

partially protected and fully protected advertising, under the

First Amendment and the equal protection clause.* And for

defamation, “the rule to be applied depend[s] on the content

of the commwvauication,” as Mini Theatres noted.* In defama-

tion law, content-based classification and disparate treat-

ment include different regulatory standards of liability for

61. E.g., Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972).

62. Young v. American Mini Theatres, Inc., 427 U.S. at 65. E.g., note 64

infra.

63. Id. at 68. Accord, e.g., Bates v. State Bar, 433 U.S. at 363 (“If com-

mercial speech is to be distinguished, it ‘must be distinguished by its

content.’ ”’).

64. Bolger v. Youngs Drug Products Corp., ___. U.S. ____., 77 L.Ed.2d at

476. E.g., Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) (ban-

ishing signs advertising off- premises enterprises but not on-premises ones);

Friedman v. Rogers, 440 U.S. 1 (1979) (prohibiting optometrists’ but not

others’ use of trade names); Virginia State Bd. of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 425 U.S. 748, 771-72 & n.24 (1976) (prohibit-

ing misleading and false advertisements but allowing other advertise-

ments); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (plurality

opinion) (public transit system selling placard space for commercial adver-

tisements but not for political ones).

65. 427 U.S. at 67 (plurality opinion).

16

defamation of public figures and of private citizens,® dispa-

rate regulation of defamation involving public controversies

and only private affairs,®’ and different treatment of defama-

tion of racial or religious groups and defamation of others.®*

For erotic materials, similarly, the plurality in Mini Thea-

tres “h[e]ld that the State may legitimately use the content of

these [sexually explicit] materials as the basis for placing

them in a different classification from other motion pic-

tures.’’®* This sort of content-based classification and regula-

tion is supported by Pacifica Foundation, sustaining a FCC

prohibition against nonobscene “indecent” language “based

in part on its content”; and LaRue, upholding a municipal

proscription of nonobscene erotic dancing or movies while

permitting other dancing and movies where liquor was

served.” In fact, not classifying and discriminating between

the content of erotic and non-erotic theaters and bookstores

66. Compare New York Times Co. v. Sullivan, 376 U.S. 254, 279-80

(1964) with Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); FCC v.

Pacifica Foundation, 438 U.S. 726, 745 (1978) (plurality opinion).

67. Compare Time, Inc. v. Hill, 424 U.S. 448, 453-55 (1976) with Gertz v.

Robert Welch, Inc., 418 U.S. at 345.

68. E.g., Beauharnais v. Illinois, 343 U.S. 250, 263 (1952).

69. 427 U.S. at 70-71. See, e.g., New York v. Ferber, 458 U.S. at 766 n.18

(“Today, we hold that child pornography. . . is unprotected speech sub-

ject to content-based regulation.”); Hart Book Stores, Inc. v. Edmisten, 612

F.2d at 830-31.

70. FCC v. Pacifica Foundation, 438 U.S. at 744 (plurality opinion).

71. California v. LaRue, 409 U.S. 109 (1972); compare id. at 138 (Mar-

shall, J., dissenting) (“[T]his classification . . . discriminates . . . on the

basis of the content of their speech. Thus, California nightclub owners may

present live shows and movies dealing with a wide variety of topics. . .

But if they choose to deal with sex, they are treated quite differently.”)

(emphasis in original) with Comment, ‘Constitutional Law: Municipal

Zoning Ordinance May Restrict Location of Adult Motion Picture Thea-

tres, 16 WASHBURN L.J. 479, 486 & n.52 (1977) (same); cf. New York State

Liquor Auth. v. Bellanca, 452 U.S. at 715-18 (upholding ban on topless

dancing in liquor licensed establishments).

17

might violate the equal protection clause, as Justice Powell

noted,” or the First Amendment.”*

D. The Overbreadth Rule Is Inapplicable to Commercial

Advertising and Erotic Material.

The overbreadth rule™* does not apply to partially pro-

tected expression. This Court has held that “the overbreadth

doctrine does not apply to commercial speech.”’*

The majority in Mini Theatres, in denying standing for a

vagueness challenge, gave a rationale that applies equally to

an overbreadth attack:

Since there is surely a less vital interest in the usinhib-

ited exhibition of material that is on the borderline be-

tween pornography and artistic expression than in the

free dissemination of ideas of social and political signifi-

cance, and since the limited amount of uncertainty in

the ordinance is easily susceptible of a narrowing con-

struction, we think this is an inappropriate case in which

72. 417 U.S. at 82.

73. The prior restraint rule also might noi apply to erotic material, just

as for commercial advertising the “different degree of protection” “may

also make inapplicable the prohibition against prior restraints.” Friedman

v. Rogers, 440 U.S. at 10, quoting Virginia State Bd. of Pharmacy v. Vir-

ginia Citizens Consumer Council, Inc., 425 U.S. at 772 n.24. Accord, e.g.,

Central Hudson Gas & Elec. Corp. v. Pub. Service Comm'n, 447 U.S. at 571

n.13; see Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 464 (1978) (uphold-

ing bar rules against partially protected attorneys’ solicitation “whose ob-

jective is the prevention of harm before it occurs”); Comment, FTC v. Si-

meon Mea ‘ment Corp.: The First Amendment and the Need for

Prelimina,, junctions of Commercial Speech, 1977 Duxk L.J. 489, 501-

10 (injunctions against commercial speech do not violate prior restraint

rule). The prior restraint rule does not apply to unprotected expression

such as obscenity. Kingsiey Books, Inc. v. Brown, 354 U.S. 436 (1957); Near

v. Minnesota, 283 U.S. 697, 716 (1931).

74. E.g., Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975); Laird v. Tatum,

408 U.S. 1, 13-14 (1972).

7&. Village of Hoffman Estates v. Flipside, 455 U.S. at 497. Accord, e.g.,

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620,

635 (1980); Bates v. State Bar, 433 U.S. at 380-81.

18

to adjudicate the hypothetical claims of persons not

before the Court.

.... The fact that the First Amendment protects

some, though not necessarily all, of that material from

total suppression does not warrant the further conclu-

sion that an exhibitor’s doubts . . . involves the kind of

threat to the free market in ideas and expression that

justifies the exceptional approach [of overbreadth

standing] to constitutional adjudication recognized in

cases like Dombrowski. . ..*

The decisions in Pacifica Foundation and LaRue support

this point.77

Pornography zoning ordinances, in any event, are not

overly broad on the ground that they apply to nonobscene

erotic material as well as to obscene material, for two reasons.

Any overbreadth is not “real and substantial’’”* in that few if

any fully protected activities are affected, and none is bur-

dened, by a location restriction for adult enterprises; and any

overbroad element is readily susceptible to a limiting con-

76. 427 US. at 61.

77. FCC v. Pacifica Foundation, 438 U.S. at 743 (plurality opinion) (be-

cause such “references to excretory and sexua! organs and activities” “lie at

the periphery of First Amendment concern,” the Court “decline[d] to ad-

minister that medicine” of “{i]nvalidating any rule on the basis of its hypo-

thetical application to situations not before the Court”); see California v.

LaRue, 409 U.S. 109, 118-19 & n.5 (1972) (the Supreme Court there “re-

fused to apply the overbreadth doctrine” to regulation of sexually explicit

dancing, films, and pictures in establishments with state liquor licenses).

Although Erznoznik found an ordinance overbroad that prohibited exhi-

bition of films containing any nudity and visible from public streets, it in-

volved fully protected expression that was impermissibly regulated

through the ordinance’s overbreadth as well as (partially protected) sexu-

ally explicit films that were as here permissibly regulated. /d. at 213; Note,

Using Constitutional Zoning to Neutralize Adu!t Entertain-

ment—Detroit to New York, 5 ForpHamM Urs. L.J. 455, 463 (1977). It was

distinguished on this basis by a majority in Mini Theatres. 427 U.S. at 72

n.35 (plurality opinion); id. at 83 (Powell, J., concurring).

78. E.g., Parker v. Levy, 417 U.S. 733, 760 (1974); Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973).

19

struction by the state courts.” Moreover, no overbreadth

arises from such “time, place, and manner” regulations.

Ill. A JUSTIFICATION FOR MOST NONSUPPRESSIVE

BURDENS EXISTS FOR ZONING AND OTHER REGULA-

TION OF NONOBSCENE EROTIC MATERIAL, BECAUSE

SUCH BURDENS MUST ONLY MEET THE LEGITIMATE

STATE INTEREST TEST OR THE COMMERCIAL AD-

VERTISING TEST FOR PARTIALLY PROTECTED

EXPRESSION -

For fully protected First Amendment interests, only a com-

pelling state interest served by the least burdensome means

will justify a direct burden.*° And only an important or sub-

stantial governmental interest served by the least restrictive

means will justify an incidental burden on such interests,

under the O’Brien test.*’ For partially protected First

Amendment interests such as erotic material, no preferred

freedom or fundamental right is involved, and a lesser state

interest with a greater range of means is sufficient to justify a

reasonable regulation short of a total proscription.

A. The O’Brien Test Does Not Apply to Regulation of

Commercial Advertising or Erotic Material.

The O’Brien test does not apply to pornography zoning and

other regulation of erotic material, because the test is

designed for incidental burdens on fully protected speech in-

tertwined with conduct rather than on partially protected ex-

pression (whether or not intertwined with conduct).** That is

evident in this Court’s decision not to apply the O’Brien test

79. E.g., Young v. American Mini Theatres, Inc., 427 U.S. at 61; see

Erznoznik v. City of Jacksonville, 422 U.S. at 216; Broadrick v. Oklahoma

413 US. at 613.

80. E.g., NAACP v. Button, 371 U.S. 415, 438, 439 (1963); Bates v. City of

Little Rock, 361 U.S. 516, 524 (1960).

81. E.g., United States v. O’Brien, 391 U.S. 367, 377 (1968); Konigsberg

v. State Bar, 366 U.S. 36, 50-51 (1961).

82. 391 U.S. at 383-84. Accord, e.g., United States v. Orito, 413 U.S. 139,

144 (1973).

20

to erotic material in Mini Theatres, LaRue, or New York Li-

quor Authority v. Bellanca.** It is also evident in the Court’s

election not to use O’Brien for the partially protected mate-

rial in commercial advertising cases “* The reason is that, for

partially protected expression but rot for O’Brien expression,

it is proper for the governmental interest both to be related to

the regulation and restriction (although not the suppression)

of partially protected speech, and to fail to use the least re-

strictive means (although the regulation must be narrowly

drawn) to accomplish the governmental interest in regulation

or restriction.

In any event, the O’Brien test was misapplied by the Ninth

Circuit. It mischaracterized as a legislative motive test the

language about a “governmental interest unrelated to the

suppression of free speech,” contrary to the express O’Brien

repudiation of any assessment of legislative motive or pur-

pose.** Further, the Ninth Circuit’s application of O’Brien

conflicts with that of Justice Powell in Mini Theatres.*’

B. The Legitimate State Interest Test or the Commer-

cial Advertising Test Applies to Regulation of Erotic

Material.

Regulation of partially protected commercial advertising is

subject to a lower level of judicial scrutiny than regulation of

fully protected speech and press,** so that broader regulation

and restriction is possible than for fully protected expres-

sion.** For commercial advertising, this Court has applied

both a special test, requiring a “substantial” governmental

83. See 427 U.S. at 63-73; 409 U.S. at 114; 452 U.S. at 715-18; cf. Schad v.

Borough of Mt. Ephraim, 452 U.S. at 68-69 n.7 (mentioning but not apply-

ing O’Brien test).

84. Section III(B) infra.

86. 391 U.S. at 383-84 (“this Court will not strike down an otherwise con-

stitutional statute on the basis of an alleged illicit legislative motive’’).

87. 427 U.S. at 79-82. E.g., Hart Book Stores, Inc. v. Edmisten, 612 F.2d

at 829-30.

88. E.g., Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 457.

89. Section II(A) supra.

21

interest and regulation “not more extensive than is necessary

to serve that interest,’’*® and a legitimate state interest test”

with merely a rational relation between the regulation and

that interest.**? Whichever is used, it does not include the re-

quirements of the O’Brien test for a “governmental interest

. . unrelated to the suppression of free expression” or for

the least restrictive means of achieving that interest.

Regulation of partially protected privileged defamation

also appears to come under a legitimate state interest test,

because “the States may define for themselves the appropri-

ate standard of liability for a publisher or broadcaster of de-

famatory falsehood injurious to a private individual,” in order

90. Central Hudson Gas & Elec. Corp. v. Pub. Service Comm'n, 441 U.S.

557, 566 (1980) (“In commercial speech cases, then, a four-part analysis

has developed. [i] At the outset, we must determine whether the expression

is protected by the First Amendment. For commercial speech to come

within that provision, it at least must concern lawful activity and not be

misleading. {ii] Next, we ask whether the asserted governmenta! interest is

substantial. If both inquiries yield positive answers, [iii] we must determine

whether the regulation directly advances the governmental interest as-

serted, [iv] and whether it is not more extensive than is necessary to serve

that interest.”) Accord, Bolger v. Youngs Drug Products Corp., ___ U.S.

___., 77 L.Ed.2d at 478-79.

91. E.g., Friedman v. Rogers, 440 U.S. at 10 n.9 (“legitimate regulatory

interests”); In re Primus, 436 U.S. 412, 422 (1978); Bigelow v. Virginia, 421

U.S. at 826; Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Rela-

tions, 413 U.S. at 389; see Members of City Council v. Taxpayers for Vin-

cent, ___ U.S. ___, 104 S.Ct. 2118 (1984); Linmark Assocs., Inc. v. Town-

ship of Willingboro, 431 U.S. 85, 92 n.6 (1977); Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. at 771-72 &

n.24. See generally Note, First Amendment Protection for Commercial

Advertising: The New Constitutional Doctrine, 44 U. Cur. L. Rev. 205

(1976).

92. E.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. at 464 (permitting

prophylactic measures for commercial advertising regulation); Common-

wealth v. Sterlace, 481 Pa. 6, 14, 391 A.2d 1066, 1070 (1978) (no least re-

strictive means requirement for commercial advertising regulation); cf.

Moore v. City of E. Cleveland, 431 U.S. 494, 500 (1977) (limitation on multi-

family use only had “tenuous relation to alleviation of the conditions” the

state interest addressed).

22

to implement the “legitimate state interest in compensating

private individuals for wrongful injury to reputation.”

Regulation of erotic material, because of its only partial

protection, should also be subject to the legitimate state in-

terest test (or minimal scrutiny), or at most to the commercial

advertising test. This Court’s plurality opinion in Mini Thea-

tres appears to have applied a legitimate interest test to the

regulation of erotic material there,** and appears to have

found the restriction on location justified by the city’s legiti-

mate interests in “preserving the character of its neighbor-

hoods” and “attempting to preserve the quality of urban

life.”** Mini Theatres appears to have required only a ra-

tional relation, rather than the O’Brien test’s least restrictive

means or the commercial advertising test’s “not more exten-

93. Gertz v. Robert Welch, Inc., 418 U.S. at 347-48. See, e.g., id. at 345-

4€, New York Times Co. v. Sullivan, 376 U.S. at 279-80 (state interest in

compensating public figures for malicious defamation); Curtis Publishing

Co. v. Butts, 388 U.S. 130, 155 (1967) (plurality opinion).

94. See 427 U.S. at 71-72; e.g., Hart Book Stores, Inc. v. Edmisten, 612

F.2d at 831 n.13 (“The Mini Theatres plurality apparently considered that

classification of sexually explicit materials would invoke only minimal scru-

tiny, 427 U.S. at 70-73.”); County Bd. v. Richards, 217 Va. 645, 648, 231

S.E.2d 231, 233, vacated on other grounds, 434 U.S. 5 (1977) (per curiam)

(Mini Theatres applied legitimate interest test); Comment, Constitutional

Law—Explicit Sex and the First Amendment, 42 Mo. L. Rev. 481, 486

(1978) (same). See also New York State Liquor Auth. v. Bellanca, 452 U.S.

at 718 (“a reasonable restriction” on topless dancing in establishment with

liquor license); id. at 717-18 (finding sufficient factual basis, if any is re-

quired, in a short legislative memorandum).

95. See 427 U.S. at 71-72. E.g., Airport Book Store, Inc. v. Jackson, 242

Ga. 214, 248 S.E.2d 623, 628 (1978) (applying “legitimate purpose” test to

adult establishment regulation); Loewy, A Better Test for Obscenity: Bet-

ter for the States—Better for Libertarians, 28 Hastincs L.J. 1315, 1320

(1977) (“Any regulation which is reasonably related to a legitimate state

objective and does not significantly impede presentation of or access to sex-

ually explicit material is constitutional.”)

23

sive than necessary” requirement, because it said many

means would be permissible.”

C. That Test for Partially Protected Speech Is Met by

Renton’s and Other Regulations of Erotic Material.

Legitimate governmental interests in regulation under the

police power,” and in regulation of external costs or spillover

effects,** justify this ordinance for pornography zoning. Mini

Theatres characterized the Detroit ordinancé as land “plan-

ning” that addressed “secondary effect[s] . . ., not the dis-

semination of ‘offensive’ speech,” and as “land-use regula-

tion” or “zoning.”*® External costs of adult establishments

include possible neighborhood deterioration, property value

impairment, crime proliferation, unhealthful conditions, and

moral debauchery.’® A rational relation exists between por-

96. “(T]he city must be allowed a reasonable opportunity to experiment

with solutions to admittedly serious problems.” 427 U.S. at 71 (plurality

opinion).

97. E.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 9 (1974) (preserva-

tion of residential neighborhoods); Paris Adult Theatre I v. Slaton, 413 U.S.

at 58 (protection of “the quality of life and the total community environ-

ment’); Barsky v. Board of Regents, 347 U.S. 442, 449 (1954) (guarding

public safety and health).

98. E.g., Kovacs v. Cooper, 336 U.S. 77, 87-89 (1949) (plurality opinion)

(regulating volume of public speech); see California v. LaRue, 409 US. at

117 n.4 (dictum) (same).

99. Id. at 62, 71 (plurality opinion); id. at 73, 74 (concurring opinion).

100. E.g., id. at 55 (plurality opinion) (expert testimony that concentra-

tion “adversely affects property values” and “encourages residents . . . to

move elsewhere”’); id. at 8% (concurring opinion); Northend Cinema, Inc. v.

City of Seattle, 90 Wash.2d 709, 585 P.2d 1153, 1156 (1978) (en banc) (“lo-

cation of adult theaters has a harmful effect on the area and contribute[s]

to neighborhood blight”), cert. denied, 441 U.S. 945 (1979); Airport Book

Store, Inc. v. Jackson, 242 Ga. 214, 248 S.E.2d at 226-27 (“a vice squad

officer testified as to numerous arrests of [adult] bookstore customers for

solicitation of sodomy, sodomy and public indecency occurring in the adult

mini motion picture theaters (peep machines) located in the rear of four

bookstores”); Los Angeles Dept. of City Planning, Study of the Effects of

the Concentration of Adult Entertainment Establishments in the C ity of

Los Angeles 5 (City Plan Case No. 26475, City Council File No. 74-4521-S.3,

24

nography zoning and these legitimate governmental interests

under the police power. Although the Detroit city counci!

only heard testimony from a single expert,’®' this Court in

Mini Theatres did not question the sufficiency of that evi-

dence to support the zoning ordinance or police power regula-

tion there.'®? Similarly, in Village of Belle Terre v. Boraas,'®*

the zoning limitation on multiple family habitation in a single

dwelling was found rationally related to legitimate interests

in relieving urban congestion and noise and advancing family

values and clean air, even though it was not the least restric-

tive or most effective means.'**

1977) (* Businessmen, residents, etc. believe that the concentration of adult

establis*ments has adverse effects on. . . the quality of life. . .. Among

the adverse effects on the quality of life cited are increased crime; the ef-

fects on children; neighborhood appearance, litter and graffiti.”); Com-

ment, Developments in the Law—Zoning, 31 Harv. L. Rev. 1427, 1568

(1978).

101. Nortown Theatre Inc. v. Gribbs, 373 F.Supp. 363, 365 (E.D. Mich.

1974), rev'd sub nom. American Mini Theatres, Inc. v. Gribbs, 518 F.2d

1014 (6th Cir. 1975), rev'd, 427 U.S. 50 (1976); e.g., Note, Anti-Pornogra-

phy Laws and First Amendment Values, 98 Harv. L. Rev. 460, 477 (1984)

(“in Young v. American Mini Theatres, a pluraiity of the Court required

only a ‘factual basis’ for the city council’s conclusion that the presence of

adult theaters caused neighborhood deterioration”).

102. E.g., Genusa v. City of Peoria, 619 F.2d 1203, 1211 (7th Cir. 1980)

(sufficient factual basis in experience of other cities); Hart Book Stores, Inc.

v. Edmisten, 612 F.2d at 828-29 n.9 (sufficient basis in one inspector's visit

at five estabiishments); cf. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61

(1973) (“From the beginning of civilized societies, legislators . . . have

acted on various unprovable assumptions,” and “[njothing in the Constitu-

tion prohibits a State from reaching such a conclusion and acting on it legis-

latively simply because there is no conclusive evidence or empirical data.’’);

Kaplan v. California, 413 U.S. 115, 120 (1973) (same).

103. 416 U.S. 1 (1974). ;

104. Id. at 8. “|W]e cannot say that legislative action is rendered irra-

tional by its choice of a less efficacious and less powerful approach than the

Constitution might permit.” Hart Book Stores v. Edmisten, 612 F.2d at

830.

25

CONCLUSION

This Court should hold emphatically that pornography

zoning and extensive regulation of adult establishments is

constitutional. Only partial protection of the First Amend-

ment extends to nonobscene erotic materia]. No impermissi-

ble burden on such erotic material results from most restric-

tive regulation that would impermissibly burden fully

protected speech. A sufficient justification for most regula-

tory burdens is present under the legitimate state interest

test or the commercial advertising test, in contrast to the

O’Brien test or the compelling interest test. These points are

also true of commercial advertising, which also is only par-

tially protected.

The “First Amendment. . . was not intended to be the

death-knell of cities” or to condemn governmental efforts “to

prevent its neighborhoods from becoming sex-oriented,

crime-ridden wastelands.”’'®> For the reasons discussed in this

brief, the decision of the Ninth Circuit should be reversed.

Respectfully submitted,

By:

WENDELL R. BIRD

Parker, Johnson, Cook & Dunlevie

Suite 700

1275 Peachtree Street, Northeast

Atlanta, Georgia 30309

(404) 872-7000

105. American Mini Theatres, Inc. v. Gribbs, 518 F.2d at 1025 (dissent-

ing opinion), rev'd, 427 U.S. 50 (1976).

26

ROBERT K. SKOLROOD

General Counsel

Freedom Council Foundation

525M Greenbrier Circle

Chesapeake, Virginia 23320

(804) 420-5460

Attorneys for Amicus Curiae

Freedom Council Foundation