Los Angeles, CA v. Alameda Books, Inc., et al. (05/13/2002)

Questions presented: Is a zoning ordinance that prohibits the operation of more than one adult entertainment business at a single location, including an adult bookstore and adult arcade, invalid because the city did not study the negative effects of such combinations of adult businesses, but rather relied on judicially approved statutory precedent from other jurisdictions?

BY REGGIE BEEHNER, MEDILL NEWS SERVICE

Wedged among a Los Angeles strip-mall containing more than a dozen stores sits an adult books and arcade shop.

More than a half dozen years ago, city officials tried to shut the business down. Pointing to a city zoning ordinance, they said the store fostered a dangerous atmosphere, one given to crime and prostitution.

The store has since become the focal point of an intense legal battle between free-speech advocates and city government officials. Both claim the stakes are high. Both refuse to give ground.

The origins of the conflict stem from 1978. That was the year the city of Los Angeles passed a zoning ordinance prohibiting adult businesses from operating within 1,000 feet of one another or within 500 feet of any church, school or public park.

The law was drafted as a result of a study performed one year earlier that found a positive correlation between concentrations of adult businesses and increases in prostitution, robberies, assaults and thefts.

In 1983, the city amended the ordinance to prohibit an adult store from sharing the same building with another adult store, regardless of whether the businesses operated in conjunction with one another.

On March 15, 1995, a Los Angeles building inspector invoked the law, seeking to shut down two adult bookstores/video shops Alameda Books, Inc. and Highland Books, Inc. that shared the same floor space in a south Los Angeles strip-mall. Both stores rented and sold sexually oriented products and offered booths for viewing X-rated videotapes. Both stores shared the same entrance, operated in the same commercial space (zoned industrial) and were supervised by a lone employee. The only real distinguishing characteristic between the two stores was that each was separately owned a distinction that existed only in the stores internal accounting procedures.

Looking to prevent their doors from closing, the stores sought an injunction against the ordinance.

On June 2, 1998, the district court granted summary judgment for the stores, permanently enjoining the city from enforcing the ordinance. The city promptly appealed.

On July 27, 2000, the 9th Circuit Court of Appeals affirmed.

Reviewing the case de novo, the court held that the city failed to meet the burden of proof required to justify a time, place or manner restriction of a protected speech.

The court based its decision on a "three-step inquiry," drawn from a 1986 Supreme Court case, City of Renton v. Playtime Theatres, Inc. The court said municipalities may impose reasonable restrictions on time, place or manner of protected speech so long as the restrictions are: 1) content neutral, 2) narrowly tailored to serve a significant government interest, and 3) leave open ample alternative channels for communication of the information.

The city argued that by closing the stores, it was serving a substantial government interest, namely preserving the neighborhood from the threat of crime and prostitution. The court, however, disagreed. It ruled that the city failed to demonstrate the stores would produce the "harmful secondary effects" cited in the 1977 study, which examined only the effects of concentrations of adult stores, not adult stores sharing the same building.

The city had hoped the study provided enough basis to support the ordinance, and cited the 1976 Supreme Court decision in Young v. American Mini Theatres, that held that a "city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems."

The court, however, held that the city had leaped to an unreasonable conclusion. While the city should be granted some deference to experiment with solutions, this freedom was not "unbounded." Rather, the city "must show that in enacting the particular limitations...it relied upon evidence permitting the reasonable inference that, absent such limitations, the adult [businesses] would have harmful secondary effects," the court held, quoting from an earlier decision.

On Aug. 28, 2000, the 9th Circuit panel denied the city's petition for rehearing, and on March 5, 2001, the U.S. Supreme Court granted certiorari in the case.

Attorneys on both sides said the case will likely attract a great deal of attention because of the important issues it encompasses, such as free speech and the scope of government authority.

John H. Weston, an attorney representing the stores, said the case was a form of "pure and classic censorship."

The ordinance would have served, in effect, as a de facto ban on expression, Weston said, allowing city governments to impose restrictions at will, while sidestepping hard-won safeguards that protect free speech.

"There's clearly no empirical justification at all (for the ordinance)," Weston said.

Michael L. Klekner, attorney for the city of Los Angeles, said the case was not so much about the 1st Amendment as it was about defining the extent to which a local government may go to enact laws that protect the community.

Klekner said the courts decision would, in effect, force the citys hand, compelling officials to wait until trouble spills out in an area before it could act to fix the problem.

"By the time the finger pointing is done, you cant regulate," Klekner said. "It undercuts any semblance of zoning regulations."

On May 13, 2002, a divided Court upheld Los Angeles' zoning ordinance, holding 5-4 that the city may reasonably rely on its 1977 study to demonstrate that its present ban on multiple-use adult establishments serves its interest in reducing crime.

Justice Sandra Day O' Connor wrote the Court's majority opinion.

In dissent, Justice David Souter wrote for himself and Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer that the ordinance is little more than an effective strategy for driving out expressive adult businesses. Which, to the dissenters, is little more than a policy of content-based regulation, in violation of the 1st Amendment.