Ruling confirms secondary effects can’t be afterthought

Tuesday, April 10, 2007

For many years, city officials across the United States have cited the mantra
of “secondary effects” to justify myriad restrictions on adult entertainment.

The secondary-effects doctrine enables government officials to impose
regulations and restrictions on the expressive content associated with adult
businesses — such as nude performance dancing — by claiming they are concerned
about secondary harmful social effects associated with the businesses. Such harmful
effects include decreased property values and increased crime. This doctrine
enables reviewing courts to view laws that seemingly single out the unsavory
expression at adult businesses as content-neutral laws rather than what they
often are — laws that restrict expression officials find distasteful and

The U.S. Supreme Court in a series of cases has not set the bar very high for
government officials’ use of the secondary-effects doctrine. As the Court
majority wrote 21 years ago in Renton
v. Playtime Theatres, Inc.
: “The First Amendment does not require a
city, before enacting such an ordinance, to conduct new studies or produce
evidence independent of that already generated by other cities, so long as
whatever evidence the city relies upon is reasonably believed to be relevant to
the problem that the city addresses.”

This means that a city does not have to hire expensive land-use experts and
conduct full-blown studies proving conclusively that a strip club will cause
harm to surrounding businesses and the community. What it does suggest, however,
is that city officials must review some evidence of secondary effects — not
simply use the rationale as a post-hoc justification for a hastily passed

The 2nd U.S. Circuit Court of Appeals’ recent decision in White
River Amusement Pub, Inc. v. Town of Hartford
shows that there are some
limits to the use of the powerful secondary-effects doctrine. In September 2001,
White River Amusement opened up an adult-entertainment business featuring nude
and semi-nude dancing in Hartford, Vt. The five-member Town Selectboard then
quickly passed a public indecency ordinance in the spring of 2002 to prohibit
nude dancing. The town’s attorney advised the selectmen to adopt a resolution
about secondary effects when adopting the proposed ordinance. The leaders did
not adopt a resolution of secondary effects and did not conduct any independent
analysis of actual or potential secondary effects of public nudity. The
selectmen apparently did not review or discuss secondary-effects studies
performed in other cities. Only later — after the passage of the ordinance — did
the town’s planning department analyze secondary-effect studies from other

The adult business sued the town in federal court, alleging that the
ordinance violated the First Amendment. It prevailed before a federal district
court, which noted that the town had failed to show that “it relied upon at least
some evidence reasonably believed to be relevant to its interest in preventing
negative secondary effects.”

The 2nd Circuit affirmed the lower court, took the town leaders to task for
failing to consider evidence of secondary effects before passing their
ordinance. Town leaders argued that they could rely on any evidence of
consideration of secondary effects — either before or after the passage of their
ordinance. The 2nd Circuit found this insufficient, finding that Renton
requires “pre-enactment evidence.” The appeals court noted: “While a municipality
may rely on the studies conduced by other towns, it may not simply rely on its
knowledge that such studies exist.”

Years ago, Supreme Court Justice William Brennan warned that the
secondary-effects doctrine could lead to an “evisceration of First Amendment
freedoms.” At least some federal courts are requiring government officials to
consider evidence of secondary effects before passing regulations. A ruling
allowing post-hoc recitation of secondary effects as a cure-all justification
would eviscerate First Amendment freedoms.

Tags: , , , ,