427 U.S. 50 (1976)
In 1962 Detroit adopted an Anti-Skid Row Ordinance that identified specific property uses as especially injurious to neighborhoods when concentrated.1 Effective November 2, 1972, the city amended the ordinance to add adult motion picture theaters and adult bookstores to the list of regulated uses.2 The amendments prohibited an adult theater from locating within 1,000 feet of any two other regulated uses or within 500 feet of a residential area.3
An adult theater was defined as any enclosed building used for presenting material distinguished or characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Areas.4 Those terms were defined to include specific sexual acts and body parts.5 The respondents operated two theaters subject to the amended ordinance.6
The Nortown, an established theater, began exhibiting adult films in March 1973.7 The Pussy Cat, a converted corner gas station operating as a mini theater, was denied a certificate of occupancy because of its plan to show adult films.8 Both locations fell within 1,000 feet of two other regulated uses, and the Pussy Cat also stood less than 500 feet from a residential area.9 The respondents filed separate actions against city officials in the United States District Court for the Eastern District of Michigan, seeking declaratory and injunctive relief.10 The District Court granted the defendants' motion for summary judgment.11 The Court of Appeals for the Sixth Circuit reversed.12 The Supreme Court granted certiorari.13
Whether the Detroit zoning ordinances are impermissibly vague under the Due Process Clause of the Fourteenth Amendment?14
A statute is impermissibly vague under the Due Process Clause if it fails to provide fair notice of prohibited conduct or encourages arbitrary enforcement.15 When protected speech is involved, a litigant is not permitted to assert the rights of third parties to raise facial vagueness if the statute's deterrent effect on legitimate expression is not both real and substantial and if the statute is readily subject to a narrowing construction by the state courts.16
No. The ordinances define Specified Sexual Activities and Specified Anatomical Areas in explicit terms listing specific acts and body parts.17 The Nortown theater began exhibiting adult films in March 1973 and the Pussy Cat was converted to exhibit adult films, so both fall squarely within the adult theater definition and the 1,000-foot and 500-foot locational restrictions.18 Any uncertainty about borderline films does not affect these respondents, who propose to offer adult fare on a regular basis, and the ordinances are readily subject to narrowing construction by state courts without a significant deterrent effect on protected expression.19
The ordinances are not impermissibly vague as applied to the respondents.20
Related opinions on this issue
Joined by Justice Brennan, Justice Stewart, And Justice Marshall
Justice Blackmun dissents on vagueness grounds and identifies an independent constitutional defect in the ordinance.21 An exhibitor cannot readily determine whether films are distinguished or characterized by an emphasis on the specified activities because the ordinance provides no guidance on how much emphasis is required.22 The exhibitor also cannot readily determine whether the theater is used for presenting such films, as the phrase could mean ever used, often used, or predominantly used.23
The ongoing obligation to monitor neighboring regulated uses creates intolerable uncertainty because at any moment a neighbor could slip into a regulated use classification.24 This grants excessive discretion to licensing officials under vague standards for prior approval of licenses and waivers, which the First Amendment does not tolerate.25
Whether the ordinances impose an invalid prior restraint on protected communication under the First Amendment?26
A zoning ordinance that limits the location of theaters exhibiting protected films constitutes an invalid prior restraint only if it suppresses or greatly restricts access to lawful speech.27 Merely regulating the place of exhibition while leaving the market for such material essentially unrestrained does not create an invalid prior restraint.28
No. The ordinances do not limit the total number of adult theaters that may operate in Detroit.29 There is no claim that distributors or exhibitors are denied access to the market or that the viewing public cannot satisfy its appetite for sexually explicit fare.30 The 1,000-foot restriction applicable to all theaters is a reasonable time, place, and manner regulation justified by the city's interest in planning commercial property use.31 The additional classification for adult theaters is addressed separately under equal protection analysis.32
The ordinances do not impose an invalid prior restraint on protected communication.33
Whether the classification of motion picture theaters on the basis of the content of the films they exhibit violates the Equal Protection Clause of the Fourteenth Amendment?34
No. The classification treats adult theaters differently because the city determined that concentration of such establishments attracts undesirable transients, increases crime, depresses property values, and injures surrounding residential and commercial areas.37 The Nortown and Pussy Cat locations each fall within 1,000 feet of two other regulated uses, and the Pussy Cat is also within 500 feet of a residential area, directly implicating the dispersal rationale.38 The classification is rationally related to the city's interest in preserving neighborhood character and is not directed at the content of the films per se.39
The classification does not violate the Equal Protection Clause.40
Whether the ordinances violate the Free Speech Clause of the First Amendment by regulating the location of theaters according to the content of their exhibitions?41
A content-based zoning regulation of the location of adult theaters does not violate the First Amendment when the regulation is justified by the city's interest in preserving the quality of urban life.42 The regulation must leave open ample alternative avenues for exhibition and must not be directed at suppressing the message of the films.43
No. The ordinances require adult theaters to be dispersed rather than concentrated and do not ban the exhibition of sexually explicit films.44 The city found that concentrations of adult establishments cause deleterious secondary effects on neighborhoods, and the record supports this determination.45 The Nortown and Pussy Cat are subject to the locational restrictions because of their proximity to other regulated uses and residential areas.46 Yet the ordinances leave myriad other locations available and do not reduce overall access to adult films.47
The classification uses the content of the films only as a basis for addressing secondary effects, not for suppressing speech.48
The ordinances do not violate the Free Speech Clause of the First Amendment.49
Related opinions on this issue
Justice Powell concurs in the judgment and views the ordinances as a valid exercise of zoning power that incidentally affects expression.50 He applies the O'Brien test and finds the regulation within the city's power.51 The ordinance furthers the substantial interest in preventing neighborhood deterioration.52
The governmental interest is unrelated to suppression of expression.53 The incidental restriction imposed is no greater than necessary because only adult theaters were shown to contribute to blight.54 The Detroit Common Council had broad regulatory power to deal with the problem that prompted enactment of the Anti-Skid Row Ordinance.55
Joined by Justice Brennan, Justice Marshall, And Justice Blackmun
Justice Stewart dissents and maintains that the ordinances impose content-based restrictions on protected speech that are presumptively unconstitutional.56 The selective interference with non-obscene sexually oriented films cannot be justified by secondary effects.57 The First Amendment does not permit government to diminish protection for expression simply because few would march to defend it.58
The kind of expression at issue here is no doubt objectionable to some, but that fact does not diminish its protected status.59 The Court rides roughshod over cardinal principles of First Amendment law requiring content-neutral time, place, and manner regulations.60