The U.S. Supreme Court has indicated that city licensing laws must contain some procedural safeguards in order to guard against censorship. In its 1990 decision FW/PBS v. City of Dallas, the high court said that a licensing scheme for adult businesses must contain two such safeguards:

• The decision to issue or deny a license must be made within a “specified and reasonable time period.”
• “There must be the possibility of prompt judicial review in the event that the license is erroneously denied.”

The most commonly mentioned secondary effects with respect to adult businesses are decreased property values and increased crime. Government officials often argue that adult businesses will reduce the property values of surrounding areas and lead to greater crime. Many courts give a high level of deference to municipal officials when it comes to secondary effects.

However, some studies have actually contradicted the general assumptions that all adult businesses cause adverse secondary effects. For example, a study by the Fulton County (Ga.) police department showed fewer police calls made from adult businesses than from regular bars. Another city-commissioned study from Fulton County showed that property values increased around some so-called gentleman’s clubs.

The U.S. Supreme Court set up a test for obscenity in its 1973 decision Miller v. California. The Court provided three “basic guidelines”:

• “Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
• “Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
• “Whether the work, taken as whole, lacks serious literary, artistic, political, or scientific value.”

These different guidelines are sometimes called the prurient-interest, patently offensive and serious-value prongs of the Miller test.

No. But a city may enact reasonable zoning measures that relegate adult businesses to a certain area or areas of town. Similarly, a city may zone adult businesses by dispersing them throughout a city.

Cities may also pass restrictions that regulate how live entertainment is performed. For example, courts have allowed cities to require nude dancers to wear at least some clothing during their performances.

But a city may not completely prohibit adult entertainment. In its 1981 decision Schad v. Borough of Mount Ephraim, the U.S. Supreme Court ruled that a town in New Jersey could not ban live adult performance dancing within its borders. “By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments,” the high court wrote.

The Supreme Court distinguished between a zoning law that restricted the location of adult businesses and a law that completely prohibited certain types of expressive conduct.

No, the work must be considered as a whole in determining whether it has serious value. In the Court’s 2002 decision in Ashcroft v. Free Speech Coalition, Justice Anthony Kennedy wrote that this was an “essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene.”

Until the mid-20th century, many American courts did find that a single sexually explicit passage in a book could make the material obscene. These courts relied on the Hicklin rule, developed from a 19th century English case, Regina v. Hicklin. Under the Hicklin test, obscenity could be found based on even one isolated passage. The test asked “whether the tendency of the matter … is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.”

Juries apply “contemporary community standards” to the first two prongs of the Miller test — the prurient-interest and patently offensive prongs. However, the U.S. Supreme Court ruled in its 1987 decision Pope v. Illinois that the serious-value question was to be determined by a reasonable-person standard — whether a reasonable person would judge a work to have serious value — rather than by community standards.

The Court reasoned: “Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won.”

This means that a work could receive protection under a national reasonable person standard even if the work would fail the standards of a more restrictive community.

No, the Miller test concerns obscenity, not child pornography. In its 1982 decision New York v. Ferber, the U.S. Supreme Court determined that child pornography was a separate category of expression that received no First Amendment protection.

“The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State’s particular and more compelling interest in prosecuting those who promote the sexual exploitation of children,” the high court wrote.

For example, the Supreme Court noted that the Miller test requires that a work have no serious literary, artistic, political or scientific value before it can be considered legally obscene. But a work could have serious value yet still involve the sexual abuse of a child, the high court reasoned. The Court quoted a congressman for the proposition that “it is irrelevant to the child [who has been harmed] whether or not the material … has a literary, artistic, political or social value.”

The Supreme Court concluded:

“The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: A trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole.”

Yes, the U.S. Supreme Court has twice ruled that a city or state can prohibit totally nude dancing. In its 1991 decision Barnes v. Glen Theatre, Inc., the high court upheld an Indiana public-indecency law prohibiting public nudity. Then, in its 2000 decision City of Erie v. Pap’s A.M., the high court upheld a similar city law prohibiting public nudity. By its terms, the ordinance regulates conduct alone. “It does not target nudity that contains an erotic message,” the Court wrote. “Rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity.”

The high court determined that a city could prohibit totally nude dancing based on the secondary-effects rationale. “The State's interest in preventing harmful secondary effects is not related to the suppression of expression,” the Court wrote.

Most courts have upheld patron-performer buffer zones as a reasonable time, place and manner restriction on expression. These courts have determined that buffer zones are a narrowly drawn way of prohibiting illegal sexual contact and even drug transactions. These courts often say that the exact distance of the buffer zone is a legislative, rather than a judicial, matter.

For example, the 9th U.S. Circuit Court of Appeals upheld a 10-foot buffer requirement in Colacurcio v. City of Kent, writing: “We leave the fine-tuning of the distance requirement to the legislative body.” The adult establishments in that case argued that the city had alternatives that would burden expression less, such as a no-touch rule or a one-foot buffer zone. The appeals court majority sided with the city.

A few courts, however, have determined that buffer zones burden more speech than necessary to achieve their objectives. For example, a federal court in Texas struck down a 6-foot buffer zone, ruling that the city’s interests could be fully satisfied with a 3-foot buffer that would not ban as much expression.