|Young v. American Mini Theatres, Inc.
518 F.2d 1014, reversed.
[ Stevens ]
[ Powell ]
[ Stewart ]
[ Blackmun ]
Young v. American Mini Theatres, Inc.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MR. JUSTICE POWELL, concurring.
Although I agree with much of what is said in the Court's opinion, and concur in Parts I and II, my approach to the resolution of this case is sufficiently different to prompt me to write separately. [n1] I view the case as presenting an example of innovative land use regulation, implicating First Amendment concerns only incidentally and to a limited extent.
One-half century ago, this Court broadly sustained the power of local municipalities to utilize the then relatively novel concept of land use regulation in order to meet effectively the increasing encroachments of urbanization upon the quality of life of their citizens. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The Court there noted the very practical consideration underlying the necessity for such power:
[W]ith the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities.
Id. at 386-387. The Court also [p74] laid out the general boundaries within which the zoning power may operate: restrictions upon the free use of private land must find their justifications in "some aspect of the police power, asserted for the public welfare"; the legitimacy of any particular restriction must be judged with reference to all of the surrounding circumstances and conditions; and the legislative judgment is to control in cases in which the validity of a particular zoning regulation is "fairly debatable." Id. at 387, 388.
In the intervening years, zoning has become an accepted necessity in our increasingly urbanized society, and the types of zoning restrictions have taken on forms far more complex and innovative than the ordinance involved in Euclid. In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), we considered an unusual regulation enacted by a small Long Island community in an apparent effort to avoid some of the unpleasantness of urban living. It restricted land use within the village to single-family dwellings, and defined "family" in such a way that no more than two unrelated persons could inhabit the same house. We upheld this ordinance, noting that desires to avoid congestion and noise from both people and vehicles were "legitimate guidelines in a land use project addressed to family needs," and that it was quite within the village's power to "make the area a sanctuary for people." Id. at 9.
Against this background of precedent, it is clear beyond question that the Detroit Common Council had broad regulatory power to deal with the problem that prompted enactment of the Anti-Skid Row Ordinance. As the Court notes, ante at 54, and n. 6, the Council was motivated by its perception that the "regulated uses," when concentrated, worked a "deleterious effect upon the [p75] adjacent areas" and could "contribute to the blighting or downgrading of the surrounding neighborhood." The purpose of preventing the deterioration of commercial neighborhoods was certainly within the concept of the public welfare that defines the limits of the police power. See Berman v. Parker, 348 U.S. 26, 32-33 (1954). Respondents apparently concede the legitimacy of the ordinance as passed in 1962, but challenge the amendments 10 years later that brought within its provisions adult theaters as well as adult bookstores and "topless" cabarets. Those amendments resulted directly from the Common Council's determination that the recent proliferation of these establishments and their tendency to cluster in certain parts of the city would have the adverse effect upon the surrounding areas that the ordinance was aimed at preventing.
Respondents' attack on the amended ordinance, insofar as it affects them, can be stated simply. Contending that it is the "character of the right, not of the limitation," which governs the standard of judicial review, see Thomas v. Collins, 323 U.S. 516, 530 (1945), and that zoning regulations therefore have no talismanic immunity from constitutional challenge, cf. New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964), they argue that the 1972 amendments abridge First Amendment rights by restricting the places at which an adult theater may locate on the basis of nothing more substantial than unproved fears and apprehensions about the effects of such a business upon the surrounding area. Cf., e.g., Terminiello v. Chicago, 337 U.S. 1 (1949); Cox v. Louisiana, 379 U.S. 536 (1965). And, even if Detroit's interest in preventing the deterioration of business areas is sufficient to justify the impact upon freedom of expression, the ordinance is nevertheless invalid because it impermissibly [p76] discriminates between types of theaters solely on the basis of their content. See Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972).
I reject respondents' argument for the following reasons.
This is the first case in this Court in which the interests in free expression protected by the First and Fourteenth Amendments have been implicated by a municipality's commercial zoning ordinances. Respondents would have us mechanically apply the doctrines developed in other contexts. But this situation is not analogous to cases involving expression in public forums or to those involving individual expression or, indeed, to any other prior case. The unique situation presented by this ordinance calls, as cases in this area so often do, for a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.
Because a substantial burden rests upon the State when it would limit in any way First Amendment rights, it is necessary to identify with specificity the nature of the infringement in each case. The primary concern of the free speech guarantee is that there be full opportunity for expression in all of its varied forms to convey a desired message. Vital to this concern is the corollary that there be full opportunity for everyone to receive the message. See, e.g., Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); Cohen v. California, 403 U.S. 15, 24 (1971); Procunier v. Martinez, 416 U.S. 396, 408-409 (1974); Kleindienst v. Mandel, 408 U.S. 753, 762-765 (1972); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 763-765 (1976). Motion pictures, the medium of expression involved here, are fully within the protection of the First [p77] Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-503 (1952). In the quarter century since Burstyn, motion pictures and an analogous medium, printed books, have been before this Court on many occasions, and the person asserting a First Amendment claim often has been a theater owner or a bookseller. Our cases reveal, however, that the central concern of the First Amendment in this area is that there be a free flow from creator to audience of whatever message a film or a book might convey. Mr. Justice Douglas stated the core idea succinctly: "In this Nation, every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor." Superior Films v. Department of Education, 346 U.S. 587, 589 (1954) (concurring opinion). In many instances, for example with respect to certain criminal statutes or censorship or licensing schemes, it is only the theater owner or the bookseller who can protect this interest. But the central First Amendment concern remains the need to maintain free access of the public to the expression. See, e.g., Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442 (1957); Smith v. California, 361 U.S. 147, 150, 153-154 (1959); Interstate Circuit v. Dallas, 390 U.S. 676, 683-684 (1968); compare Marcus v. Search Warrant, 367 U.S. 717, 736 (1961), and A Quantity of Books v. Kansas, 378 U.S. 205, 213 (1964), with Heller v. New York, 413 U.S. 483, 491-492 (1973); and cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-71 (1963).
In this case, there is no indication that the application of the Anti-Skid Row Ordinance to adult theaters has the effect of suppressing production of or, to any significant degree, restricting access to adult movies. The Nortown concededly will not be able to exhibit adult movies at its present location, and the ordinance limits the potential [p78] location of the proposed Pussy Cat. The constraints of the ordinance with respect to location may indeed create economic loss for some who are engaged in this business. But, in this respect, they are affected no differently from any other commercial enterprise that suffers economic detriment as a result of land use regulation. The cases are legion that sustained zoning against claims of serious economic damage. See, e.g., Zahn v. Board of Public Works, 274 U.S. 325 (1927).
The inquiry for First Amendment purposes is not concerned with economic impact; rather, it looks only to the effect of this ordinance upon freedom of expression. This prompts essentially two inquiries: (i) does the ordinance impose any content limitation on the creators of adult movies or their ability to make them available to whom they desire, and (ii) does it restrict in any significant way the viewing of these movies by those who desire to see them? On the record in this case, these inquiries must be answered in the negative. At most, the impact of the ordinance on these interests is incidental and minimal. [n2] Detroit has silenced no message, has invoked no censorship, and has imposed no limitation upon those who wish to view them. The ordinance is addressed only to the places at which this type of [p79] expression may be presented, a restriction that does not interfere with content. Nor is there any significant overall curtailment of adult movie presentations, or the opportunity for a message to reach an audience. On the basis of the District Court's finding, ante at 71-72, n. 35, it appears that, if a sufficient market exists to support them, the number of adult movie theaters in Detroit will remain approximately the same, free to purvey the same message. To be sure, some prospective patrons may be inconvenienced by this dispersal. [n3] But other patrons, depending upon where they live or work, may find it more convenient to view an adult movie when adult theaters are not concentrated in a particular section of the city.
In these circumstances, it is appropriate to analyze the permissibility of Detroit's action under the four-part test of United States v. O'Brien, 391 U.S. 367, 377 (1968). Under that test, a governmental regulation is sufficiently justified, despite its incidental impact upon First Amendment interests,
if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free [p80] expression; and if the incidental restriction on . . . First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Ibid. The factual distinctions between a prosecution for destruction of a Selective Service registration certificate, as in O'Brien, and this case are substantial, but the essential weighing and balancing of competing interests are the same. Cf. Procunier v. Martinez, 416 U.S. at 409-412.
There is, as noted earlier, no question that the ordinance was within the power of the Detroit Common Council to enact. See Berman v. Parker, 348 U.S. at 32. Nor is there doubt that the interests furthered by this ordinance are both important and substantial. Without stable neighborhoods, both residential and commercial, large sections of a modern city quickly can deteriorate into an urban jungle with tragic consequences to social, environmental, and economic values. While I agree with respondents that no aspect of the police power enjoys immunity from searching constitutional scrutiny, it also is undeniable that zoning, when used to preserve the character of specific areas of a city, is perhaps
the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life.
Village of Belle Terre v. Boraas, 416 U.S. at 13 (MARSHALL, J., dissenting).
The third and fourth tests of O'Brien also are met on this record. It is clear both from the chronology and from the facts that Detroit has not embarked on an effort to suppress free expression. The ordinance was already in existence, and its purposes clearly set out, for a full decade before adult establishments were brought under it. When this occurred, it is clear -- indeed it is not seriously challenged -- that the governmental interest prompting the inclusion in the ordinance of adult establishments was wholly unrelated to any suppression of [p81] free expression. [n4] Nor is there reason to question that the degree of incidental encroachment upon such expression was the minimum necessary to further the purpose [p82] of the ordinance. The evidence presented to the Common Council indicated that the urban deterioration was threatened not by the concentration of all movie theaters with other "regulated uses," but only by a concentration of those that elected to specialize in adult movies. [n5] The case would present a different situation had Detroit brought within the ordinance types of theaters that had not been shown to contribute to the deterioration of surrounding areas. [n6] [p83]
The dissenting opinions perceive support for their position in Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). I believe this perception is a clouded one. The Jacksonville and Detroit ordinances are quite dissimilar, and our analysis of the infirmities of the former is inapplicable to the latter. In Erznoznik, an ordinance purporting to prevent a nuisance, not a comprehensive zoning ordinance, prohibited the showing of films containing nudity by drive-in theaters when the screens were visible from a public street or place. The governmental interests advanced as justifying the ordinance were three: (i) to protect citizens from unwilling exposure to possibly offensive materials; (ii) to protect children from such materials; and (iii) to prevent the slowing of passing traffic and the likelihood of resulting accidents. We found the Jacksonville ordinance, on its face, either overbroad or underinclusive with respect to each of these asserted purposes. As to the first purpose, the ordinance was overbroad because it proscribed the showing of any nudity, however innocent or educational. Moreover, potential viewers who deemed particular nudity to be offensive were not captives; they had only to look elsewhere. Id. at 210-212; see Cohen v. California, 403 U.S. at 21. As to minors, the Jacksonville ordinance was overbroad because it "might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach." 422 U.S. at 213. Finally, the ordinance was not rationally tailored to support its asserted purpose as a traffic regulation. By proscribing "even the most fleeting and innocent glimpses of nudity," it was strikingly underinclusive -- omitting "a wide variety [p84] of other scenes in the customary screen diet . . . [that] would be [no] less distracting to the passing motorist." Id. at 214-215.
In sum, the ordinance in Erznoznik was a misconceived attempt directly to regulate content of expression. The Detroit zoning ordinance, in contrast, affects expression only incidentally, and in furtherance of governmental interests wholly unrelated to the regulation of expression. At least as applied to respondents, it does not offend the First Amendment. Although courts must be alert to the possibility of direct, rather than incidental, effect of zoning on expression, and especially to the possibility of using the power to zone as a pretext for suppressing expression, it is clear that this is not such a case.
1. I do not think we need reach, nor am I inclined to agree with, the holding in Part III (and supporting discussion) that nonobscene, erotic materials may be treated differently under First Amendment principles from other forms of protected expression. I do not consider the conclusions in Part I of the opinion to depend on distinctions between protected speech.
2. The communication involved here is not a kind in which the content or effectiveness of the message depends in some measure upon where or how it is conveyed. Cf. Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 93 (1972).
There is no suggestion that the Nortown is, or that the Pussy Cat would be, anything more than a commercial purveyor. They do not profess to convey their own personal messages through the movies they show, so that the only communication involved is that contained in the movies themselves. Cf. United States v. O'Brien, 391 U.S. 367, 376 (1968); Spence v. Washington, 418 U.S. 405, 409-411 (1974).
3. The burden, it should be noted, is no different from that imposed by more common ordinances that restrict to commercial zones of a city movie theaters generally, as well as other types of businesses presenting similar traffic, parking, safety, or noise problems. After a half century of sustaining traditional zoning of this kind, there is no reason to believe this Court would invalidate such an ordinance as violative of the First Amendment. The only difference between such an ordinance and the Detroit ordinance lies in the reasons for regulating the location of adult theaters. The special public interest that supports this ordinance is certainly as substantial as the interests that support the normal area zoning to which all movie theaters, like other commercial establishments, long have been subject.
4. Respondents attack the nature of the evidence upon which the Common Council acted in bringing adult entertainment establishments under the ordinance, and which petitioners submitted to the District Court in support of it. That evidence consisted of reports and affidavits from sociologists and urban planning experts, as well as some laymen, on the cycle of decay that had been started in areas of other cities, and that could be expected in Detroit, from the influx and concentration of such establishments. Respondents insist that a major part of that cycle is a kind of "self-fulfilling prophecy" in which a business establishment neighboring on several of the "regulated uses" perceives that the area is going downhill economically, and moves out, with the result that a less desirable establishment takes its place -- thus fulfilling the prophecy made by the more reputable business. As noted earlier, supra at 75, respondents have tried to analogize these types of fears to the apprehension found insufficient in previous cases to justify stifling free expression. But cases like Cox and Terminiello, upon which respondents rely, involved individuals desiring to express their own messages, rather than commercial exhibitors of films or vendors of books. When an individual or a group of individuals is silenced, the message itself is silenced and free speech is stifled. In the context of movies and books, the more apt analogy to Cox or Terminiello would be the censorship cases, in which a State or a municipality attempted to suppress copies of particular works, or the licensing cases in which that danger was presented. But a zoning ordinance that merely specifics where a theater may locate, and that does not reduce significantly the number or accessibility of theaters presenting particular films, stifles no expression.
Moreover, the Common Council did not inversely zone adult theaters in an effort to protect citizens against the content of adult movies. If that had been its purpose, or the effect of the amendment to the ordinance, the case might be analogous to those cited by MR. JUSTICE STEWART's dissent, post at 85. Moreover, an intent or purpose to restrict the communication itself because of its nature would make the O'Brien test inapplicable. See O'Brien, 391 U.S. at 382; Spence v. Washington, 418 U.S. at 414 n. 8; cf. Stromberg v. California, 283 U.S. 359 (1931). But the Common Council simply acted to protect the economic integrity of large areas of its city against the effects of a predictable interaction between a concentration of certain businesses and the responses of people in the area. If it had been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location.
5. Respondents have argued that the Common Council should have restricted adult theaters' hours of operation or their exterior advertising instead of refusing to allow their clustering with other "regulated uses." Most of the ill effects, however, appear to result from the clustering itself, rather than the operational characteristics of individual theaters. Moreover, the ordinance permits an exception to its 1,000-foot restriction in appropriate cases. See ante at 54 n. 7.
6. In my view, MR. JUSTICE STEWART's dissent misconceives the issue in this case by insisting that it involves an impermissible time, place, and manner restriction based on the content of expression. It involves nothing of the kind. We have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings. See n. 3, supra. Moreover, even if this were a case involving a special governmental response to the content of one type of movie, it is possible that the result would be supported by a line of cases recognizing that the government can tailor its reaction to different types of speech according to the degree to which its special and overriding interests are implicated. See, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503, 509-511 (1969); Procunier v. Martinez, 416 U.S. 396, 413-414 (1974); Greer v. Spock, 424 U.S. 828, 842-844 (1976) (POWELL, J., concurring); cf. CSC v. Letter Carriers, 413 U.S. 548 (1973). It is not analogous to Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972), in which no governmental interest justified a distinction between the types of messages permitted in the public forum there involved.