535 U.S. 425 (2002)
In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments.1 The study concluded that concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surrounding communities.2
Accordingly, the city enacted an ordinance prohibiting the establishment, substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or massage parlor within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park.3 There is evidence that the intent of the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings.4 The intent was also to disperse distinct adult businesses operated under common ownership and housed in a single structure.5
The ordinance the city enacted directed that the distance between any two adult entertainment businesses shall be measured in a straight line from the closest exterior structural wall of each business.6 Subsequent to enactment, the city realized that this method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure.7 Concerned that allowing an adult-oriented department store to replace a strip of adult establishments could defeat the goal of the original ordinance, the city council amended the code by adding a prohibition on the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.8
The amended ordinance defines an adult entertainment business to include an adult arcade, bookstore, cabaret, motel, theater, or massage parlor.9 It notes that each of these enterprises shall constitute a separate adult entertainment business even if operated in conjunction with another at the same establishment.10 Respondents Alameda Books, Inc., and Highland Books, Inc., are two adult establishments operating in Los Angeles.11 Each occupies less than 3,000 square feet and is located more than 1,000 feet from other adult establishments and 500 feet from sensitive uses.12
Both respondents rent and sell sexually oriented products, including videocassettes.13 Both provide booths where patrons can view videocassettes for a fee.14 Retail sales and video booths are located in the same commercial space with only one entrance to each establishment.15 After a city building inspector found in 1995 that Alameda Books was operating both as an adult bookstore and an adult arcade in violation of the zoning regulations, respondents sued under 42 U.S.C. § 1983 for declaratory and injunctive relief.16 The District Court initially denied both motions on the First Amendment issues in count I.17 After respondents filed a motion for reconsideration, the District Court found that Los Angeles' prohibition on multiple-use adult establishments was not a content-neutral regulation of speech and granted summary judgment to respondents.18 The Court of Appeals for the Ninth Circuit affirmed on different grounds.19 The Supreme Court granted certiorari to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton.20
Whether the city of Los Angeles could reasonably rely on its 1977 study of adult business concentrations to demonstrate that the 1983 ordinance prohibiting multiple adult entertainment businesses in the same building serves a substantial government interest in reducing crime?
Under Renton v. Playtime Theatres, Inc., a municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between the regulated speech and a substantial government interest in reducing secondary effects.21
Yes. In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments. The study concluded that concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surrounding communities. Accordingly, the city enacted an ordinance prohibiting the establishment, substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or massage parlor within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park.
There is evidence that the intent of the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings. The intent was also to disperse distinct adult businesses operated under common ownership and housed in a single structure. The ordinance the city enacted directed that the distance between any two adult entertainment businesses shall be measured in a straight line from the closest exterior structural wall of each business. Subsequent to enactment, the city realized that this method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure.
Concerned that allowing an adult-oriented department store to replace a strip of adult establishments could defeat the goal of the original ordinance, the city council amended the code by adding a prohibition on the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof. The amended ordinance defines an adult entertainment business to include an adult arcade, bookstore, cabaret, motel, theater, or massage parlor. It notes that each of these enterprises shall constitute a separate adult entertainment business even if operated in conjunction with another at the same establishment.
Respondents Alameda Books, Inc., and Highland Books, Inc., are two adult establishments operating in Los Angeles. Each occupies less than 3,000 square feet and is located more than 1,000 feet from other adult establishments and 500 feet from sensitive uses. Both respondents rent and sell sexually oriented products, including videocassettes. Both provide booths where patrons can view videocassettes for a fee. Retail sales and video booths are located in the same commercial space with only one entrance to each establishment. After a city building inspector found in 1995 that Alameda Books was operating both as an adult bookstore and an adult arcade in violation of the zoning regulations, respondents sued under 42 U.S.C. § 1983 for declaratory and injunctive relief. The city relied on the 1977 study to support the 1983 amendment.22 The study supports the inference that concentrations of operations attract crowds leading to crime, whether in separate buildings or one building.23 The city is not required to conduct new studies or prove the theory with certainty.24
The city of Los Angeles could reasonably rely on its 1977 study to demonstrate that the 1983 ordinance serves a substantial government interest in reducing crime.25
Related opinions on this issue
Justice Kennedy concurred in the judgment.26 He agreed that the ordinance is constitutional but reached that conclusion through a somewhat different analysis.27 Kennedy emphasized that the city must not use its zoning power as a pretext for suppressing protected speech.28
He noted that the ordinance is a regulation of the location of adult businesses justified by the interest in reducing secondary effects.29 There is no indication in the record that the predominant purpose was suppression of speech.30 Kennedy stressed that a city may not assert that it will reduce secondary effects by reducing speech in the same proportion.31
The ordinance satisfies the requirement by dispersing businesses rather than closing them.32 At least in theory, a dispersal ordinance causes these businesses to separate rather than to close, so negative externalities are diminished but speech is not.33 Kennedy also observed that the ordinance is not so suspect that courts must employ the usual rigorous analysis that content-based laws demand in other instances.34
Joined by Justices Stevens And Ginsburg, And Justice Breyer As To Part Ii
Justice Souter dissented.35 He argued that the plurality's decision represents a significant departure from the principles established in Renton and its progeny.36 Souter contended that the 1977 study examined the effects of adult entertainment businesses in general, not the marginal effects of adding a second business to a single location.37
The city has not provided adequate evidence that the specific problem of having two adult businesses in one building produces secondary effects distinct from those produced by a single adult business.38 Souter warned that the plurality's approach dilutes the protections of the First Amendment by allowing regulation without evidence that the specific restriction is necessary.39 The plurality's willingness to accept this evidence effectively eliminates the narrow tailoring requirement.40
A city could now regulate adult businesses in almost any way it chooses so long as it asserts an interest in reducing secondary effects and points to some study, no matter how unrelated to the specific regulation at issue.41
Whether the Ninth Circuit erred in holding that the city failed to present evidence upon which it could reasonably rely to show that its regulation of multiple-use adult establishments was designed to serve its interest in reducing crime?
The Ninth Circuit erred by requiring the city to prove its theory was the only plausible explanation for the data in the 1977 study, whereas Renton permits reliance on evidence that fairly supports the rationale at the summary judgment stage unless plaintiffs cast direct doubt on it.42
Yes. The Ninth Circuit found the 1977 study did not support the inference because it treated combination businesses as single and did not study separate-standing ones.43 However, the study supports the city's theory that concentration of operations draws crowds, and the court improperly replaced the city's theory with its own about size of operation.44 The city met the Renton standard at summary judgment stage by showing the evidence fairly supports the rationale that reducing concentrations of operations in one building will reduce crime.45
Neither the Court of Appeals, nor respondents, nor the dissent provides any reason to question the city's theory.46
The Ninth Circuit erred in holding that the city failed to present evidence upon which it could reasonably rely.
Related opinions on this issue
Justice Scalia concurred.47 He joined the plurality opinion because it represents a correct application of our jurisprudence concerning regulation of the secondary effects of pornographic speech.48 Scalia noted that in a case such as this our First Amendment traditions make secondary effects analysis quite unnecessary.49
The Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex.50
Whether the procedural history from the District Court's grant of summary judgment through the Ninth Circuit's affirmance and the grant of certiorari properly frames the evidentiary question under the Renton framework?51
The procedural history properly frames the question because the case arrives on summary judgment where the city need only show its evidence fairly supports the rationale, and the grant of certiorari was to clarify the Renton evidentiary standard.52
Yes. The District Court granted summary judgment to respondents after finding the ordinance content-based.53 The Ninth Circuit affirmed on the ground that the city failed to show the ordinance was designed to serve a substantial interest. The Supreme Court granted certiorari to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton. At this early stage the city has complied with the evidentiary requirement in Renton.54
The procedural history properly frames the evidentiary question under the Renton framework.55