Zoning out the First Amendment

Monday, July 19, 1999

The First Amendment often frustrates the efforts of local government officials to punish adult businesses. Thanks to something called the secondary-effects doctrine, however, they are learning how to run the First Amendment out of town — or at least banish it to the other side of the tracks.

The secondary-effects theory is a judicial loophole that allows cities and counties to enact ordinances targeting adult businesses by asserting that the laws are not really directed at the expression that goes on inside but at the so-called secondary effects that happen outside.

Just a few news items from the past week provide an idea of how pervasive and multi-faceted the application of the secondary effects doctrine has become.

  • The Oregon Senate approved a measure to amend the state constitution to permit restrictive zoning requirements on adult businesses. Supporters of the measure say that the Oregon Supreme Court has been too strict about the free-speech rights of such businesses.

  • Anaheim, Calif., officials decided to fight a state appeals court’s ruling that the city violated the First Amendment rights of an adult-business owner. The ordinance prohibited such businesses from locating within 400 feet of a residential zone — in this instance, a thin slice of vacant land next to a freeway where “no one in his or her right mind would ever construct a residence,” the court wrote.

  • And in Tampa, Fla., city officials decided that a private college dorm where cameras linked to an Internet site follow the activities of six women residents as they study, shower and sunbathe is not a home but a business and must have an adult occupational license to continue its activities.

  • So, under the pretext of doing something about crime, poverty, prostitution and assorted other social ills, real or concocted, government officials impose additional regulatory requirements and zoning restrictions on businesses engaged in expression they don’t like. The result is to crowd protected speech into a First Amendment ghetto.

    This piece of legal legerdemain began life as a footnote in a 1976 Supreme Court decision. It was raised up on its hind legs with the unremarkable assertion that speech can cause “secondary effects.” Subsequent court decisions conferred the rank of Theory or Doctrine, thus granting it the license to defy good sense, overturn judicial precedent and subvert the Constitution.

    Why should we care what tools government officials use to go after strip joints, adult theaters, bookstores and video rental stores?

    We should care because the secondary-effects doctrine is an open invitation to government officials who don’t like certain speakers or their speech to try to punish protected expression under the guise of protecting the community.

    We should care because it is a lose-lose proposition for businesses that locate in blighted areas because of laws already on the books and then are held responsible for causing those problems, winding up in a game of musical chairs where there’s never a seat for them.

    We should care because the secondary-effects theory cannot be confined to tightening the screws on sexual speech only. There always is speech of some sort that someone in power or the majority doesn’t want the folks from the other side of the tracks uttering. There are always secondary effects that can be used as an excuse for limiting all sorts of speech.

    Imagine applying this approach to other social ills. We would never have to actually address the problems of the so-called “secondary effects,” just — for example — move poor people from place to place to prevent urban blight, move convenience stores to prevent hold-ups, or move city hall to prevent violation of constitutional rights.

    It’s not only adult businesses that are affected by zoning laws supported by the secondary-effects doctrine. A Pennsylvania resident found himself in court for putting biblical messages on his swimming pool fence. The District of Columbia targeted political protesters with a law that prohibited signs within 500 feet of a foreign embassy “to shield diplomats from speech that offends their dignity.” Dozens of cities are attempting to regulate billboards advertising liquor and tobacco products.

    It doesn’t stop there. We see this concept at work in attempts to regulate violence in the media, hate speech, certain kinds of religious speech, political dissent in the form of flag-burning, artistic speech considered blasphemous, musical speech considered annoying or sexist, speech that is asserted to be threats or incitement — the list goes on.

    In fact, Justice William Brennan once warned that going down this road “will lead to the evisceration of the First Amendment.”

    He was right. As different speakers are targeted each time, the body of protected speech gradually becomes smaller until it consists almost entirely of homogeneous, inoffensive speech.

    In other words, speech that has no effect at all.

    Paul McMasters may be contacted at pmcmasters@freedomforum.org.