Starry Decisis: Los Angeles's Lusty Legal History
This column is the first in a series of articles on important Supreme Court cases that have developed out of events in Los Angeles. "Stare Decisis" is the guiding principle of the American legal system - the court should "let the decision stand" and respect precedent for the sake of the rule of law. Even though it is known for shaping American pop culture, Los Angeles has shaped American legal culture in more ways than we may like to admit.
Pornography law, much like pornography itself, would be nowhere without the movies. The People vs. Larry Flynt, for example, made a martyr out of the smut magnate while educating the country on the limits of the First Amendment. More importantly, though, the Supreme Court's decisions about obscenity have developed out of cases brought by or against adult video stores. It's only fitting that the most notable recent decision in this field came from silicone city itself.
Los Angeles, in its awkward position as the entertainment industry's lover and landlord, had passed two zoning ordinances regulating the location of adult entertainment stores. The first ordinance, enacted in 1977, prohibited adult stores from locating within 1,000 feet from each other. Problem is, the 1,000 feet was measured between the exterior walls of the businesses. Adult store owners exploited a loophole in the law that permitted two adult businesses to operate within the same building. Like the cockroach, the porn proprietor endures.
In fact, adult stores skated by for quite some time under the radar, even in the midst of a second ordinance, passed in 1983, forbidding adult businesses from locating in the same structure. In 1995, a city inspector discovered that Alameda Books, named for its location on Alameda Street just south of the 10, was skirting the rule by locating its bookstore and video rental facilities in the same building as its "arcade" facilities, where customers would pay to watch porn flicks. To prevent the city from enforcing the zoning ordinance, Alameda Books sued the city on First Amendment grounds.
The Supreme Court decision in City of Los Angeles v. Alameda Books is a bit of a mess. Under the guiding decision, City of Renton v. Playtime Theatres, cities are allowed to regulate only the "secondary effects" of adult theatres and bookstores, not the content of what they sell. Cities proceeded to justify their anti-porn laws by pointing to the crime and economic consequences associated with red light districts. Renton also gave the Court cover - it could vindicate populist sentiment without explicitly eviscerating the First Amendment. When it comes to sex, nobody, not even the nine bodies on the Supreme Court, is totally free of denial.
Following Renton, Los Angeles had backed up Ordinance #1, zoning for the dispersal of adult stores, with a 1977 study proving that high concentrations of adult entertainment businesses correlated to "higher rates of prostitution, robbery, assaults, and thefts in surrounding communities." Alameda Books argued that this study, potentially no longer even relevant in 1995, could not be used to justify Ordinance #2, prohibiting adult stores from siting within the same building.
Come 2002, seven years later, the Supreme Court issued its plurality opinion in the case, written by Justice Sandra Day O'Connor. The opinion is a template of the classic O'Connor two-step: first, it tosses the strict rule out, and then it substitutes a balancing test in its place. Because the regulation regulated only effects, and not content, it was therefore "content-neutral" and did not require the "strict scrutiny" applied to content-based regulations. The city could "reasonably rely" on the study's findings in fashioning its ordinances. Applying so-called "intermediate scrutiny" instead, O'Connor explained, and to some extent reconciled the central difficulty of the case:
Our deference to the evidence presented by the city of Los Angeles is the product of a careful balance between competing interests. One the one hand, we have an "obligation to exercise independent judgment when First Amendment rights are implicated." On the other hand, we must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems. We are also guided by the fact that Renton requires that municipal ordinances receive only intermediate scrutiny if they are content neutral. There is less reason to be concerned that municipalities will use these ordinances to discriminate against unpopular speech.
The real punch of Alameda Books, though, comes from Justice Kennedy's concurrence, which decided the case 5-4. Kennedy agreed that intermediate scrutiny was in order, and that the court had reached the right result. He noted archly, however, that the plurality had fudged the definition of "content-neutral." It hadn't even considered where all that "speech," in the form of sexploitation, would go if regulated. To remain loyal to the First Amendment, the Court's duty was to consider whether the ordinance could reduce secondary effects "without substantially reducing speech." Only then could it fairly be called content-neutral.
Courts across the country have seized upon the different vectors in the opinion - some, favoring the O'Connor opinion, have found it easier to uphold city regulations. Others, taking the hint from Kennedy, have required trial courts to take a harder look at the city's justifications (for discsussions of specific cases, go here).
In 2005, the culture wars rage on, on other fronts. Movies like Boogie Nights, Weezer music videos, Fred Durst's tiresome antics, not to mention Pam Anderson's Hepatitis-C diagnosis, have led to a national case of smut exhaustion. Like Sandra Day O'Connor herself, the validity of porn regulation likely won't return to the bench anytime soon, leaving the Alameda Books decision to stand.