Massachusetts court rejects law restricting location of adult businesses

Thursday, May 21, 1998

A Massachusetts Superior Court justice recently ruled that an ordinance in Reading severely limiting where adult businesses can locate violates the First Amendment.

Town officials drafted a zoning law that relegated adult businesses to certain industrial areas of town and prohibited them from locating within 750 feet of “any lot” containing a church, school, day-care center, park, playground, public library, cultural facility, museum and other similar sites.

Town officials brought enforcement proceedings against the owners of Video Expo, a store that sells adult books and videos, because the store continued to do business in a non-industrial area of town. The store owners responded by challenging the law on First Amendment grounds, claiming it discriminated against their business based on the content of their expression.

Town officials countered that the law was necessary to combat certain harmful secondary effects associated with adult businesses, including urban blight, increased crime and decreased property values.

Justice James F. McHugh determined in Town of Reading v. Santorelli that “a desire to head off the secondary effects of 'adult uses' … is a substantial and important governmental interest.” He also found that the law was “truly aimed” at the secondary effects rather than the suppression of speech.

However, McHugh still ruled that the law violated the First Amendment, because it failed to provide “alternative channels of communication” for adult businesses like Video Expo. Citing evidence that under the zoning law only 0.6 percent of the city's land was available for adult businesses, the judge concluded that the zoning measures “effectively foreclose any opportunity for speech of the type in which Video Expo wishes to engage.”

The judge concluded: “In many respects, this By-law represents a thoughtful and innovative way of dealing with an anticipated set of difficult problems flowing from the operation of a business of a type that elsewhere has contributed to urban blight and decay. That business, however, involves speech. Although much of that speech lies at the margin of social acceptance, it is nonetheless entitled to the full protection of the First Amendment.”

Roger Wilcox, attorney for the store owners, said: “We agree completely with the judge's observation that the locational restrictions of the ordinance were unconstitutional. These restrictions would have left our client no place to operate.”

Wilcox disagreed with the court's finding that the law was content-neutral. “I believe the law was directed primarily at the type of speech involved rather than the secondary effects of the businesses,” he said. “However, I was very pleased that the judge bought our secondary argument that the law was unconstitutional because it failed to provide alternative channels of communication for this type of expression.”

Town manager Peter Hechenbleikner said: “We are presently in the process of redrafting the by-law. In fact, the planning commission is going through that process right now.”