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LOS ANGELES V. ALAMEDA BOOKS, INC. (00-799) 535 U.S. 425 (2002)
222 F.3d 719, reversed and remanded.
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Opinion
[ O’Connor ]
Concurrence
[ Scalia ]
Concurrence
[ Kennedy ]
Dissent
[ Souter ]
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Opinion of O’Connor, J.

NOTICE:  This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES


No. 00—799

CITY OF LOS ANGELES, PETITIONER v.
ALAMEDA BOOKS, INC., et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT

[May 13, 2002]

    Justice O’Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Scalia, and Justice Thomas join.

    Los Angeles Municipal Code §12.70(C) (1983), as amended, prohibits “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.” Respondents, two adult establishments that each operated an adult bookstore and an adult video arcade in the same building, filed a suit under Rev. Stat. §1979, 42 U.S.C. § 1983 (1994 ed., Supp. V), alleging that §12.70(C) violates the First Amendment and seeking declaratory and injunctive relief. The District Court granted summary judgment to respondents, finding that the city of Los Angeles’ prohibition was a content-based regulation of speech that failed strict scrutiny. The Court of Appeals for the Ninth Circuit affirmed, but on different grounds. It held that, even if §12.70(C) were a content-neutral regulation, the city failed to demonstrate that the prohibition was designed to serve a substantial government interest. Specifically, the Court of Appeals found that the city failed to present evidence upon which it could reasonably rely to demonstrate a link between multiple-use adult establishments and negative secondary effects. Therefore, the Court of Appeals held the Los Angeles prohibition on such establishments invalid under Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and its precedents interpreting that case. 222 F.3d 719, 723—728 (2000). We reverse and remand. The city of Los Angeles may reasonably rely on a study it conducted some years before enacting the present version of §12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime.

I

    In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments and concluded that concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surrounding communities. See App. 35—162 (Los Angeles Dept. of City Planning, Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles (City Plan Case No. 26475, City Council File No. 74—4521—S.3, June 1977)). Accordingly, the city enacted an ordinance prohibiting the establishment, substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park. See Los Angeles Municipal Code §12.70(C) (1978).

    There is evidence that the intent of the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings, but also to disperse distinct adult businesses operated under common ownership and housed in a single structure. See App. 29 (Los Angeles Dept. of City Planning, Amendment–Proposed Ordinance to Prohibit the Establishment of More than One Adult Entertainment Business at a Single Location (City Plan Case No. 26475, City Council File No. 82—0155, Jan. 13, 1983)). The ordinance the city enacted, however, directed that “[t]he distance between any two adult entertainment businesses shall be measured in a straight line … from the closest exterior structural wall of each business.” Los Angeles Municipal Code §12.70(D) (1978). Subsequent to enactment, the city realized that this method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure.

    Concerned that allowing an adult-oriented department store to replace a strip of adult establishments could defeat the goal of the original ordinance, the city council amended §12.70(C) by adding a prohibition on “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.” Los Angeles Municipal Code §12.70(C) (1983). The amended ordinance defines an “Adult Entertainment Business” as an adult arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters, and notes that each of these enterprises “shall constitute a separate adult entertainment business even if operated in conjunction with another adult entertainment business at the same establishment.” §12.70(B)(17). The ordinance uses the term “business” to refer to certain types of goods or services sold in adult establishments, rather than the establishment itself. Relevant for purposes of this case are also the ordinance’s definitions of adult bookstores and arcades. An “Adult Bookstore” is an operation that “has as a substantial portion of its stock-in-trade and offers for sale” printed matter and videocassettes that emphasize the depiction of specified sexual activities. §12.70(B)(2)(a). An adult arcade is an operation where, “for any form of consideration,” five or fewer patrons together may view films or videocassettes that emphasize the depiction of specified sexual activities. §12.70(B)(1).

    Respondents, Alameda Books, Inc., and Highland Books, Inc., are two adult establishments operating in Los Angeles. Neither is located within 1,000 feet of another adult establishment or 500 feet of any religious institution, public park, or school. Each establishment occupies less than 3,000 square feet. Both respondents rent and sell sexually oriented products, including videocassettes. Additionally, both provide booths where patrons can view videocassettes for a fee. Although respondents are located in different buildings, each operates its retail sales and rental operations in the same commercial space in which its video booths are located. There are no physical distinctions between the different operations within each establishment and each establishment has only one entrance. 222 F.3d, at 721. Respondents concede they are openly operating in violation of §12.70(C) of the city’s Code, as amended. Brief for Respondents 7; Brief for Petitioner 9.

    After a city building inspector found in 1995 that Alameda Books, Inc., was operating both as an adult bookstore and an adult arcade in violation of the city’s adult zoning regulations, respondents joined as plaintiffs and sued under 42 U.S.C. § 1983 for declaratory and injunctive relief to prevent enforcement of the ordinance. 222 F.3d, at 721. At issue in this case is count I of the complaint, which alleges a facial violation of the First Amendment. Both the city and respondents filed cross-motions for summary judgment.

    The District Court for the Central District of California initially denied both motions on the First Amendment issues in count I, concluding that there was “a genuine issue of fact whether the operation of a combination video rental and video viewing business leads to the harmful secondary effects associated with a concentration of separate businesses in a single urban area.” App. 255. After respondents filed a motion for reconsideration, however, the District Court found that Los Angeles’ prohibition on multiple-use adult establishments was not a content-neutral regulation of speech. App. to Pet. for Cert. 51. It reasoned that the neither the city’s 1977 study nor a report cited in Hart Book Stores v. Edmisten, 612 F.2d 821 (CA4 1979) (upholding a North Carolina statute that also banned multiple-use adult establishments), supported a reasonable belief that multiple-use adult establishments produced the secondary effects the city asserted as content-neutral justifications for its prohibition. App. to Pet. for Cert. 34—47. Therefore, the District Court proceeded to subject the Los Angeles ordinance to strict scrutiny. Because it felt that the city did not offer evidence to demonstrate that its prohibition is necessary to serve a compelling government interest, the District Court granted summary judgment for respondents and issued a permanent injunction enjoining the enforcement of the ordinance against respondents. Id., at 51.

    The Court of Appeals for the Ninth Circuit affirmed, although on different grounds. The Court of Appeals determined that it did not have to reach the District Court’s decision that the Los Angeles ordinance was content based because, even if the ordinance were content neutral, the city failed to present evidence upon which it could reasonably rely to demonstrate that its regulation of multiple-use establishments is “designed to serve” the city’s substantial interest in reducing crime. The challenged ordinance was therefore invalid under Renton, 475 U.S. 41. 222 F.3d, at 723—724. We granted certiorari, 532 U.S. 902 (2001), to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton, supra.

II

    In Renton v. Playtime Theatres, Inc., supra, this Court considered the validity of a municipal ordinance that prohibited any adult movie theater from locating within 1,000 feet of any residential zone, family dwelling, church, park, or school. Our analysis of the ordinance proceeded in three steps. First, we found that the ordinance did not ban adult theaters altogether, but merely required that they be distanced from certain sensitive locations. The ordinance was properly analyzed, therefore, as a time, place, and manner regulation. Id., at 46. We next considered whether the ordinance was content neutral or content based. If the regulation were content based, it would be considered presumptively invalid and subject to strict scrutiny. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115, 118 (1991); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230—231 (1987). We held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the surrounding community, namely at crime rates, property values, and the quality of the city’s neighborhoods. Therefore, the ordinance was deemed content neutral. Renton, supra, at 47—49. Finally, given this finding, we stated that the ordinance would be upheld so long as the city of Renton showed that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available. 475 U.S., at 50. We concluded that Renton had met this burden, and we upheld its ordinance. Id., at 51—54.

    The Court of Appeals applied the same analysis to evaluate the Los Angeles ordinance challenged in this case. First, the Court of Appeals found that the Los Angeles ordinance was not a complete ban on adult entertainment establishments, but rather a sort of adult zoning regulation, which Renton considered a time, place, and manner regulation. 222 F.3d, at 723. The Court of Appeals turned to the second step of the Renton analysis, but did not draw any conclusions about whether the Los Angeles ordinance was content based. It explained that, even if the Los Angeles ordinance were content neutral, the city had failed to demonstrate, as required by the third step of the Renton analysis, that its prohibition on multiple-use adult establishments was designed to serve its substantial interest in reducing crime. The Court of Appeals noted that the primary evidence relied upon by Los Angeles to demonstrate a link between combination adult businesses and harmful secondary effects was the 1977 study conducted by the city’s planning department. The Court of Appeals found, however, that the city could not rely on that study because it did not “ ‘suppor[t] a reasonable belief that [the] combination [of] businesses … produced harmful secondary effects of the type asserted.” 222 F.3d, at 724. For similar reasons, the Court of Appeals also rejected the city’s attempt to rely on a report on health conditions inside adult video arcades described in Hart Book Stores, a case that upheld a North Carolina statute similar to the Los Angeles ordinance challenged in this case. 612 F.2d 821.

    The central component of the 1977 study is a report on city crime patterns provided by the Los Angeles Police Department. That report indicated that, during the period from 1965 to 1975, certain crime rates grew much faster in Hollywood, which had the largest concentration of adult establishments in the city, than in the city of Los Angeles as a whole. For example, robberies increased 3 times faster and prostitution 15 times faster in Hollywood than citywide. App. 124—125.

    The 1977 study also contains reports conducted directly by the staff of the Los Angeles Planning Department that examine the relationship between adult establishments and property values. These staff reports, however, are inconclusive. Not surprisingly, the parties focus their dispute before this Court on the report by the Los Angeles Police Department. Because we find that reducing crime is a substantial government interest and that the police department report’s conclusions regarding crime patterns may reasonably be relied upon to overcome summary judgment against the city, we also focus on the portion of the 1977 study drawn from the police department report.

    The Court of Appeals found that the 1977 study did not reasonably support the inference that a concentration of adult operations within a single adult establishment produced greater levels of criminal activity because the study focused on the effect that a concentration of establishments–not a concentration of operations within a single establishment–had on crime rates. The Court of Appeals pointed out that the study treated combination adult bookstore/arcades as single establishments and did not study the effect of any separate-standing adult bookstore or arcade. 222 F.3d, at 724.

    The Court of Appeals misunderstood the implications of the 1977 study. While the study reveals that areas with high concentrations of adult establishments are associated with high crime rates, areas with high concentrations of adult establishments are also areas with high concentrations of adult operations, albeit each in separate establishments. It was therefore consistent with the findings of the 1977 study, and thus reasonable, for Los Angeles to suppose that a concentration of adult establishments is correlated with high crime rates because a concentration of operations in one locale draws, for example, a greater concentration of adult consumers to the neighborhood, and a high density of such consumers either attracts or generates criminal activity. The assumption behind this theory is that having a number of adult operations in one single adult establishment draws the same dense foot traffic as having a number of distinct adult establishments in close proximity, much as minimalls and department stores similarly attract the crowds of consumers. Brief for Petitioner 28. Under this view, it is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates.

    Neither the Court of Appeals, nor respondents, nor the dissent provides any reason to question the city’s theory. In particular, they do not offer a competing theory, let alone data, that explains why the elevated crime rates in neighborhoods with a concentration of adult establishments can be attributed entirely to the presence of permanent walls between, and separate entrances to, each individual adult operation. While the city certainly bears the burden of providing evidence that supports a link between concentrations of adult operations and asserted secondary effects, it does not bear the burden of providing evidence that rules out every theory for the link between concentrations of adult establishments that is inconsistent with its own.

    The error that the Court of Appeals made is that it required the city to prove that its theory about a concentration of adult operations attracting crowds of customers, much like a minimall or department store does, is a necessary consequence of the 1977 study. For example, the Court of Appeals refused to allow the city to draw the inference that “the expansion of an adult bookstore to include an adult arcade would increase” business activity and “produce the harmful secondary effects identified in the Study.” 222 F.3d, at 726. It reasoned that such an inference would justify limits on the inventory of an adult bookstore, not a ban on the combination of an adult bookstore and an adult arcade. The Court of Appeals simply replaced the city’s theory–that having many different operations in close proximity attracts crowds–with its own–that the size of an operation attracts crowds. If the Court of Appeals’ theory is correct, then inventory limits make more sense. If the city’s theory is correct, then a prohibition on the combination of businesses makes more sense. Both theories are consistent with the data in the 1977 study. The Court of Appeals’ analysis, however, implicitly requires the city to prove that its theory is the only one that can plausibly explain the data because only in this manner can the city refute the Court of Appeals’ logic.

    Respondents make the same logical error as the Court of Appeals when they suggest that the city’s prohibition on multiuse establishments will raise crime rates in certain neighborhoods because it will force certain adult businesses to relocate to areas without any other adult businesses. Respondents’ claim assumes that the 1977 study proves that all adult businesses, whether or not they are located near other adult businesses, generate crime. This is a plausible reading of the results from the 1977 study, but respondents do not demonstrate that it is a compelled reading. Nor do they provide evidence that refutes the city’s interpretation of the study, under which the city’s prohibition should on balance reduce crime. If this Court were nevertheless to accept respondents’ speculation, it would effectively require that the city provide evidence that not only supports the claim that its ordinance serves an important government interest, but also does not provide support for any other approach to serve that interest.

    In Renton, we specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. We held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. 475 U.S., at 51—52; see also, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584 (1991) (Souter, J., concurring in judgment) (permitting municipality to use evidence that adult theaters are correlated with harmful secondary effects to support its claim that nude dancing is likely to produce the same effects). This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality’s evidence does not support its rationale or by furnishing evidence that disputes the municipality’s factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality’s rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. See, e.g., Erie v. Pap’s A. M., 529 U.S. 277, 298 (2000) (plurality opinion). This case is at a very early stage in this process. It arrives on a summary judgment motion by respondents defended only by complaints that the 1977 study fails to prove that the city’s justification for its ordinance is necessarily correct. Therefore, we conclude that the city, at this stage of the litigation, has complied with the evidentiary requirement in Renton.

    Justice Souter faults the city for relying on the 1977 study not because the study fails to support the city’s theory that adult department stores, like adult minimalls, attract customers and thus crime, but because the city does not demonstrate that free-standing single-use adult establishments reduce crime. See post, at 8—9 (dissenting opinion). In effect, Justice Souter asks the city to demonstrate, not merely by appeal to common sense, but also with empirical data, that its ordinance will successfully lower crime. Our cases have never required that municipalities make such a showing, certainly not without actual and convincing evidence from plaintiffs to the contrary. See, e.g., Barnes, supra, at 583—584 (Souter, J., concurring in judgment). Such a requirement would go too far in undermining our settled position that municipalities must be given a “ ‘reasonable opportunity to experiment with solutions’ ” to address the secondary effects of protected speech. Renton, supra, at 52 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976) (plurality opinion)). A municipality considering an innovative solution may not have data that could demonstrate the efficacy of its proposal because the solution would, by definition, not have been implemented previously. The city’s ordinance banning multiple-use adult establishments is such a solution. Respondents contend that there are no adult video arcades in Los Angeles County that operate independently of adult bookstores. See Brief for Respondents 41. But without such arcades, the city does not have a treatment group to compare with the control group of multiple-use adult establishments, and without such a comparison Justice Souter would strike down the city’s ordinance. This leaves the city with no means to address the secondary effects with which it is concerned.

    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.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 666 (1994) (plurality opinion); see also Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843—844 (1978). 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. See Turner, supra, at 665—666; Erie v. Pap’s A. M., supra, at 297—298 (plurality opinion). We are also guided by the fact that Renton requires that municipal ordinances receive only intermediate scrutiny if they are content neutral. Renton, supra, at 48—50. There is less reason to be concerned that municipalities will use these ordinances to discriminate against unpopular speech. See Erie, supra, at 298—299.

    Justice Souter would have us rethink this balance, and indeed the entire Renton framework. In Renton, the Court distinguished the inquiry into whether a municipal ordinance is content neutral from the inquiry into whether it is “designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.” 475 U.S., at 47—54. The former requires courts to verify that the “predominate concerns” motivating the ordinance “were with the secondary effects of adult [speech], and not with the content of adult [speech].” Id., at 47. The latter inquiry goes one step further and asks whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance. Only at this stage did Renton contemplate that courts would examine evidence concerning regulated speech and secondary effects. Id., at 50—52. Justice Souter would either merge these two inquiries or move the evidentiary analysis into the inquiry on content neutrality, and raise the evidentiary bar that a municipality must pass. His logic is that verifying that the ordinance actually reduces the secondary effects asserted would ensure that zoning regulations are not merely content-based regulations in disguise. See post, at 5—6.

    We think this proposal unwise. First, none of the parties request the Court to depart from the Renton framework. Nor is the proposal fairly encompassed in the question presented, which focuses on the sorts of evidence upon which the city may rely to demonstrate that its ordinance is designed to serve a substantial governmental interest. Pet. for Cert. i. Second, there is no evidence suggesting that courts have difficulty determining whether municipal ordinances are motivated primarily by the content of adult speech or by its secondary effects without looking to evidence connecting such speech to the asserted secondary effects. In this case, the Court of Appeals has not yet had an opportunity to address the issue, having assumed for the sake of argument that the city’s ordinance is content neutral. 222 F.3d, at 723. It would be inappropriate for this Court to reach the question of content neutrality before permitting the lower court to pass upon it. Finally, Justice Souter does not clarify the sort of evidence upon which municipalities may rely to meet the evidentiary burden he would require. It is easy to say that courts must demand evidence when “common experiences” or “common assumptions” are incorrect, see post, at 6—7, but it is difficult for courts to know ahead of time whether that condition is met. Municipalities will, in general, have greater experience with and understanding of the secondary effects that follow certain protected speech than will the courts. See Pap’s A. M., 529 U.S., at 297—298 (plurality opinion). For this reason our cases require only that municipalities rely upon evidence that is “reasonably believed to be relevant” to the secondary effects that they seek to address.

III

    The city of Los Angeles argues that its prohibition on multiuse establishments draws further support from a study of the poor health conditions in adult video arcades described in Hart Book Stores, a case that upheld a North Carolina ordinance similar to that challenged here. See 612 F.2d, at 828, n. 9. Respondents argue that the city cannot rely on evidence from Hart Book Stores because the city cannot prove it examined that evidence before it enacted the current version of §12.70(C). Brief for Respondents 21. Respondents note, moreover, that unsanitary conditions in adult video arcades would persist regardless of whether arcades were operated in the same buildings as, say, adult bookstores. Ibid.

    We do not, however, need to resolve the parties’ dispute over evidence cited in Hart Book Stores. Unlike the city of Renton, the city of Los Angeles conducted its own study of adult businesses. We have concluded that the Los Angeles study provides evidence to support the city’s theory that a concentration of adult operations in one locale attracts crime, and can be reasonably relied upon to demonstrate that Los Angeles Municipal Code §12.70(C) (1983) is designed to promote the city’s interest in reducing crime. Therefore, the city need not present foreign studies to overcome the summary judgment against it.

    Before concluding, it should be noted that respondents argue, as an alternative basis to sustain the Court of Appeals’ judgment, that the Los Angeles ordinance is not a typical zoning regulation. Rather, respondents explain, the prohibition on multiuse adult establishments is effectively a ban on adult video arcades because no such business exists independently of an adult bookstore. Brief for Respondents 12—13. Respondents request that the Court hold that the Los Angeles ordinance is not a time, place, and manner regulation, and that the Court subject the ordinance to strict scrutiny. This also appears to be the theme of Justice Kennedy’s concurrence. He contends that “[a] city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Post, at 7 (opinion concurring in judgment). We consider that unobjectionable proposition as simply a reformulation of the requirement that an ordinance warrants intermediate scrutiny only if it is a time, place, and manner regulation and not a ban. The Court of Appeals held, however, that the city’s prohibition on the combination of adult bookstores and arcades is not a ban and respondents did not petition for review of that determination.

    Accordingly, we reverse the Court of Appeals’ judgment granting summary judgment to respondents and remand the case for further proceedings.

It is so ordered.