Caseflicks

Supreme Court of the United States • 2002

City of Los Angeles v. Alameda Books, Inc.

535 U.S. 425 | 122 S. Ct. 1728 | 152 L. Ed. 2d 670 | 2002 U.S. LEXIS 3424 | 15 Fla. L. Weekly Fed. S 267 | 70 U.S.L.W. 4369 | 2002 Daily Journal DAR 5167 | 2002 Cal. Daily Op. Serv. 4067

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case permits a city to rely on reasonably relevant evidence and sensible inferences—not conclusive proof—to defend an adult-business dispersal ordinance from summary judgment, while leaving unresolved whether this particular ordinance ultimately satisfies First Amendment scrutiny.

Background

Los Angeles originally adopted zoning rules after a 1977 study found that neighborhoods with concentrated adult businesses had elevated rates of crimes such as robbery and prostitution. The ordinance required adult businesses to be separated from one another and from specified sensitive uses. Its method for measuring distance, however, left a loophole: multiple adult businesses could operate under one roof. In 1983, the City amended the ordinance to prohibit more than one adult entertainment business in the same building, structure, or portion of a structure.

Alameda Books and Highland Books each combined an adult bookstore with an adult video arcade in one commercial space. They sold or rented sexually explicit materials and also offered video-viewing booths for a fee. The businesses conceded that the combination violated the amended ordinance. They sued under 42 U.S.C. § 1983, alleging that the restriction violated the First Amendment.

The District Court ultimately treated the ordinance as content based and held it invalid under strict scrutiny. The Ninth Circuit affirmed on a different ground. Assuming that the ordinance could be analyzed as a content-neutral time, place, and manner regulation under Renton v. Playtime Theatres, the court held that Los Angeles had not produced evidence reasonably supporting a connection between combined bookstore-arcades and harmful secondary effects. The Supreme Court reversed the grant of summary judgment for the businesses and remanded.

Issues

Issue #1

Whether Los Angeles could rely on its 1977 study of crime associated with concentrations of adult establishments to show that its ban on multiple adult businesses under one roof was designed to serve a substantial governmental interest under Renton.

Holding

Yes. At the summary-judgment stage, the City could reasonably rely on the study to support its theory that prohibiting multiple adult operations in one location serves the substantial interest in reducing crime.

Reasoning

Under Renton, a zoning regulation directed at the secondary effects of adult businesses receives intermediate scrutiny if it is a time, place, and manner regulation rather than a ban on protected expression. A city must show that the measure is designed to serve a substantial governmental interest and leaves reasonable alternative avenues of communication. Reducing crime is unquestionably a substantial governmental interest.

The 1977 Los Angeles study found that areas with high concentrations of adult establishments were associated with higher crime rates. Although the study examined separate establishments rather than multiple adult operations within one building, the City could reasonably infer that both arrangements create a similar concentration of adult-oriented operations, customers, and foot traffic. Like a minimall or department store, multiple operations at one site can attract a dense concentration of patrons and thereby attract or generate criminal activity.

The Ninth Circuit demanded too much by requiring the study to prove that the City's theory was the only possible explanation of the data. The study was also consistent with the court's alternative theory that the size or inventory of a business, rather than the number of operations, accounted for greater traffic. But Renton does not require a municipality to eliminate every competing interpretation or prove conclusively that its chosen solution is best.

A municipality's evidence must fairly support its rationale; it cannot rely on shoddy data or unsupported reasoning. Once the City offers evidence reasonably believed relevant to the asserted secondary effects, however, the challengers must cast direct doubt on the rationale by showing that the evidence does not support it or by offering evidence contradicting the City's factual premises. If they do so, the City must supplement the record. Here, the businesses argued only that the 1977 study did not necessarily prove the City's theory, which was insufficient to justify summary judgment against the City.

The Court also emphasized that municipalities need reasonable room to experiment with solutions to local secondary effects. A new regulatory approach may lack a perfect empirical comparison group precisely because the city has not tried it before. Requiring proof that the breakup of a combined bookstore-arcade would empirically lower crime before the City could act would improperly prevent such experimentation.

Issue #2

Whether the Court should decide whether the ordinance was content neutral, a valid time, place, and manner regulation, or instead an effective ban requiring strict scrutiny.

Holding

No. The Court did not decide that question because the Ninth Circuit had assumed content neutrality without resolving it, and the businesses had not sought review of the Ninth Circuit's conclusion that the ordinance was not a ban.

Reasoning

The Court's holding was limited to the evidentiary question under Renton. The Ninth Circuit had not decided whether the ordinance was content neutral, because it held the ordinance invalid even on the assumption that intermediate scrutiny applied. The Supreme Court therefore left that issue for the lower court on remand.

The businesses argued that the ordinance effectively banned adult video arcades because such arcades ordinarily operated only in combination with adult bookstores. The Court treated that argument as a challenge to the ordinance's characterization as a time, place, and manner regulation rather than a dispersal measure. But the Ninth Circuit had already held that the measure was not a ban, and the businesses did not petition for review of that ruling.

Because the City had adequately supported its asserted crime-reduction rationale for purposes of defeating summary judgment, the Court reversed and remanded for further proceedings, including the unresolved questions concerning the ordinance's constitutional classification and application.

Issue #3

Whether the City needed to rely on the out-of-state evidence discussed in Hart Book Stores to justify its ordinance.

Holding

No. The Court did not need to resolve the dispute about that evidence because Los Angeles's own 1977 study was sufficient at this stage.

Reasoning

The City cited Hart Book Stores, which had discussed health and sanitary conditions in adult video arcades in North Carolina. The businesses responded that Los Angeles had not shown it considered that material when it enacted its ordinance and that the evidence did not establish why separating arcades from bookstores would address the identified conditions.

The Court found it unnecessary to decide whether Hart Book Stores could be used. Unlike the city in Renton, Los Angeles had conducted its own study, and that study reasonably supported the City's theory that concentrations of adult operations at one location could increase crime. That evidence alone was enough to defeat summary judgment.

Concurrences

Justice Scalia

Reasoning

Justice Scalia joined the plurality because it correctly applied the Court's existing secondary-effects doctrine. He repeated, however, his view that the doctrine is unnecessary in this setting: in his view, the First Amendment permits communities that choose to do so to regulate, or even entirely suppress, the business of pandering sex.

Justice Kennedy

Reasoning

Justice Kennedy agreed that the City was entitled to avoid summary judgment, but he objected to calling an ordinance that singles out adult speech businesses "content neutral." On its face, such a law is content based because it treats adult theaters and bookstores differently based on what they offer. Still, a zoning rule aimed at the external harms of a land use need not trigger the usual presumption of illicit content discrimination; zoning has a prima facie legitimate purpose of addressing negative externalities.

For Justice Kennedy, the key constitutional line is between dispersing adult businesses to reduce secondary effects and suppressing adult speech itself. A City may not claim that it reduces crime merely because a content-based restriction reduces the quantity of speech or the number of patrons in direct proportion. That rationale would equally justify an unconstitutional content-based tax or fee.

Intermediate scrutiny is appropriate only when the City's rationale is that adult businesses will generally disperse rather than close, so that the quantity and accessibility of protected speech remain substantially intact while adverse secondary effects fall significantly. The City may reasonably infer that two adult businesses under one roof create much the same concentration-related harms as two businesses next door to one another.

The City's study showed a correlation between concentrations of adult businesses and crime, and common experience supported the inference that separating businesses could reduce a critical mass of customers and associated crime with little loss of speech. These assumptions could be tested at trial, but they were sufficient to prevent facial invalidation on summary judgment.

Dissents

Justice Souter

Reasoning

Justice Souter, joined by Justices Stevens and Ginsburg, and by Justice Breyer as to Part II, would have affirmed. He accepted for purposes of the case that Los Angeles could require separate adult establishments to disperse based on the 1977 study's correlation between geographic concentrations of such establishments and higher crime. But he concluded that the City had not shown any comparable basis for forcing a traditionally combined bookstore and video arcade to divide into two businesses.

Secondary-effects zoning is not genuinely content neutral in the ordinary sense, because it applies only when a business offers adult expressive material. Justice Souter described it as "content correlated." That feature creates a real risk that a municipality is using zoning as a pretext to suppress a disfavored viewpoint, so courts should require empirical support showing both that the alleged secondary effects exist and that the challenged regulation can actually alleviate them without suppressing speech.

The City's 1977 study did not show that a freestanding adult bookstore with video-viewing booths caused crime or other neighborhood harms. It treated combined bookstores and arcades as single establishments, found no association between isolated adult establishments and elevated crime, and offered no evidence that splitting the businesses would reduce criminal activity. The City therefore relied on speculation, not evidence, when it claimed that its breakup policy furthered crime control.

The majority's analogy between an adult minimall and the respondents' businesses was incomplete. A restriction on an adult minimall might plausibly address a concentration of previously separate operations. But the businesses here combined closely related sales and viewing activities in a conventional, commercially natural manner; the ordinance would not simply disperse them geographically but would require the creation of two establishments where one had existed.

Justice Souter warned that the practical effect of the ordinance could be to raise the costs of adult expression by requiring two rents, payrolls, and sets of operating expenses. If one of the resulting businesses closed, the City would reduce secondary effects only by reducing protected speech—a justification that cannot support a content-based restriction. Without evidence that the breakup would address crime independently of speech suppression, the ordinance should fail intermediate scrutiny.