Secondary effects and the 3 acts of David Souter

Thursday, June 25, 2009

This article is part of an online symposium on the First Amendment Center Online titled Justice Souter & the First Amendment.

Justice David Souter played a pivotal and somewhat unusual role in the development of a most important doctrine in First Amendment law — something called secondary effects. In his three acts in this area, which involves adult entertainment, he expanded the doctrine, partially retracted his earlier position and called for the creation of a new category in the Court’s larger free-speech methodology.

The secondary-effects doctrine makes it much easier for government officials to regulate adult entertainment. It provides government officials with a justification for singling out adult businesses not because of any offensive content in adult entertainment but because of so-called harmful, secondary effects associated with those businesses, such as increased crime and decreased property values in surrounding neighborhoods.

Ordinarily in First Amendment jurisprudence a law that singles out a specific type of expression (such as adult entertainment) would be classified as a content-based law subject to strict scrutiny, the highest form of judicial review. However, if government officials advance a secondary-effects rationale, the regulation is classified as content-neutral and subject to a lower standard of judicial review.

The secondary-effects doctrine arose out of adult-business zoning cases. In Young v. American Mini Theatres (1976), the Court used the term in a footnote while upholding a law that prohibited adult businesses from locating within a certain distance from other such businesses. The Supreme Court reasoned that the law was not passed to silence offensive expression but to prevent the deterioration of neighborhoods. In a footnote, Justice John Paul Stevens characterized such neighborhood deterioration as a “secondary effect.” He wrote:

“The Common Council’s determination was that a concentration of adult movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive speech.’”

The Court used the secondary-effects doctrine again nearly a decade later in City of Renton v. Playtime Theatres (1986) to uphold a similar zoning law. This time secondary effects moved from a footnote to center stage. The Young and Renton decisions both involved zoning regulations affecting where adult businesses could locate.

Act 1: Barnes v. Glen Theatre
Unlike in Young and Renton, the regulation at issue in Barnes v. Glen Theatre did not restrict the location of adult businesses; it regulated the actual content of nude performance dancing. Indiana state law required dancers to don at least minimal clothing (G-strings and pasties), thus prohibiting totally nude dancing. Two adult establishments and two dancers contended that a prohibition on the content of nude dancing infringed on their right to convey erotic expression.

A slim majority of the Court ruled 5-4 against the dancers. Three justices in the majority justified the Indiana public-indecency law on the basis of public morality. Justice Souter took a different approach by relying on the secondary-effects doctrine in his concurring opinion.

He reasoned that it was “no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films” in Renton. Souter used a rationale specifically designed for zoning cases and applied it to limit the actual content of adult entertainment.

Souter also was not troubled that Indiana legislators had never heard of secondary effects when they passed the public-nudity law. He said he did not believe that government officials had to show evidence that adult businesses caused secondary effects. “I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every case,” he wrote.

Souter’s opinion became the law of the land, as by Court convention it was the narrowest opinion, or least sweeping in its rationale, among the justices in the majority. Lower courts across the country used Souter’s concurring opinion to pass all sorts of regulations limiting not only the location of adult businesses but also more direct restrictions on them, such as bans on totally nude dancing and requirements for patron-performer buffer zones.

Act 2: City of Erie v. PAP'S A.M.
Nearly 10 years later in City of Erie v. PAP’S A.M. (2000), a majority of the Court used the rationale of Souter’s earlier concurring opinion in Barnes to uphold a Pennsylvania city’s public-indecency law that prohibited public nudity. This time, a majority of the justices used the secondary-effects doctrine to justify a direct restriction on the content of adult expression.

However, even though his earlier concurrence became the law of the land, Souter dissented in this newer case. Souter had reconsidered his position and decided that some adult businesses may not cause harmful secondary effects.

Souter said he still believed that the secondary-effects doctrine applied to direct regulations on adult expression. However, he now disagreed with his position in Barnes that government officials had no duty to show that they actually relied on secondary effects when passing laws limiting adult expression.

Souter explained: “I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.”

As his biographer, Tinsley E. Yarbrough, wrote in David Hackett Souter: Traditional Republican on the Rehnquist Court (2005): “Rather than simply assume secondary effects associated with nude dancing, he now believed that the city had an obligation to present evidence establishing a connection between nude dancing and related crimes.”

Act 3: City of Los Angeles v. Alameda Books
The Supreme Court returned to secondary effects and adult entertainment in City of Los Angeles v. Alameda Books (2002). The Court examined a Los Angeles ordinance that limited so-called multiple-use adult businesses. The city assumed that a business that operated as both an adult bookstore and an adult arcade could cause secondary effects. The city relied on a 6-year-old study on secondary effects that did not, however, address multiple-use adult businesses. Two lower courts were troubled by the city’s reasoning and ruled in favor of the adult businesses. However, the Supreme Court reversed the lower courts, saying they had ruled against the city prematurely and that the city might yet be able to justify the law on a secondary-effects basis.

Souter wrote a dissenting opinion, noting that the study the city relied on did not discuss multiple-use adult businesses. In other words, Souter agreed with the lower courts that the city did not provide sufficient evidence of secondary effects.

Souter did more than that, though — he also called for the creation of a new category in the Court’s content-discrimination analysis. Traditionally, laws are classified as content-based or content-neutral. Souter reasoned that restrictions on adult businesses that may be justified by secondary effects should be classified as “content correlated.”

“It would in fact make sense to give this kind of zoning regulation a First Amendment label of its own, and if we called it content correlated, we would not only describe it for what it is, but keep alert to a risk of content-based regulation that it poses,” Souter wrote.

Souter also stressed that if officials relied on a secondary-effects justification, they must show by “empirical evidence” that such effects exist.

The secondary-effects doctrine remains the primary justification used by local officials to justify various restrictions on adult businesses. David Souter contributed to the expansion of the doctrine with his concurring opinion in Barnes by extending it beyond the zoning context and allowing city officials to invoke secondary effects without empirical evidence.

Souter later changed his position, writing in a dissent that he would like to require government officials to come forward with at least some proof of secondary effects before imposing restrictions. Today courts are divided on whether such proof should be required, and if so how much; most just require cities to cite a secondary-effects study and reasonably rely on that for their ordinances regulating adult businesses.

Among the many areas of First Amendment jurisprudence to which Justice David Souter contributed during his nearly 20 years on the Court, the secondary-effects area represents a pronounced example of his influence. Souter made an indelible impact and imprint on the Court’s development on this issue.

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