After violent video games, what about adult entertainment?

Wednesday, June 29, 2011

The U.S. Supreme Court rejected California’s violent video-game law in part because of the imprecise social-science research linking violent video games to aggressiveness in children. Now if the Court would only apply that reasoning in cases involving adult entertainment.

“These studies have been rejected by every court to consider them, and with good reason,” wrote Justice Antonin Scalia in his majority opinion in Brown v. Entertainment Merchants Association. “They do not prove that violent video games cause minors to act aggressively.” Scalia recognized that at best the studies show “some correlation between exposure to violent entertainment and minuscule real-world effects.”

Unfortunately, the Court has been far more deferential to studies purportedly showing that adult businesses cause harmful secondary effects on surrounding communities, such as a decline in property values. In the adult-entertainment context, the Court has allowed cities to rely on old studies from other cities. In the lower courts, the deference to such studies is at times mind-boggling.

Though he did not address the adult-entertainment context, Scalia’s opinion offers a possible reason for the disparate treatment of the “proof” in these different types of cases.  Scalia emphasized that the California violent video-game law was a content-based law subject to strict scrutiny — the highest form of constitutional review by judges.

On the other hand, laws that zone, license and otherwise regulate adult businesses are considered content-neutral laws subject only to intermediate scrutiny.

That brings up another fallacy in First Amendment law. Laws affecting adult businesses are not really content-neutral. Justice Anthony Kennedy admitted in his concurrence in City of Los Angeles v. Alameda Books (2002) that “these ordinances are content based and we should call them so.” Sad to say, Kennedy then asserted that intermediate scrutiny should still apply.

This reasoning explains the insidiousness of the secondary-effects doctrine — that laws targeting adult businesses based on their expressive conduct are still evaluated as content-neutral laws. They are not content-neutral. That’s why years ago Justice Potter Stewart was correct in his dissent in the seminal adult-business zoning case Young v. American Mini Theatres (1976), when he wrote that treating a law zoning adult businesses as content-neutral was a “drastic departure from established principles of First Amendment law.”

The California video-game law that restricted the entertainment activity of minors was evaluated under strict scrutiny — as it should have been. But adult-business zoning laws that restrict the entertainment of consenting adults are evaluated under intermediate scrutiny.

To return to Potter Stewart’s wisdom in his 1976 dissent: “By refusing to invalidate Detroit’s ordinance the Court rides roughshod over cardinal principles of First Amendment law, which require that time, place, and manner regulations that affect protected expression be content neutral except in the limited context of a captive or juvenile audience.”

Justice Scalia followed “cardinal principles of First Amendment law” in invalidating California’s video-game law. One can only hope that one day the Supreme Court and lower courts will apply these “cardinal principles of First Amendment law” to adult entertainment ordinances.

But they probably won’t.

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