|City of Renton v. Playtime Theatres, Inc.
[ Rehnquist ]
[ Brennan ]
City of Renton v. Playtime Theatres, Inc.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Renton's zoning ordinance selectively imposes limitations on the location of a movie theater based exclusively on the content of the films shown there. The constitutionality of the ordinance is therefore not correctly analyzed under standards applied to content-neutral time, place, and manner restrictions. But even assuming that the ordinance may fairly be characterized as content-neutral, it is plainly unconstitutional under the standards established by the decisions of this Court. Although the Court's analysis is limited to [p56] cases involving "businesses that purvey sexually explicit materials," ante at 49, and n. 2, and thus does not affect our holdings in cases involving state regulation of other kinds of speech, I dissent.
"[A] constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech." Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 536 (1980). The Court asserts that the ordinance is
aimed not at the content of the films shown at "adult motion picture theatres," but rather at the secondary effects of such theaters on the surrounding community,
ante at 47 (emphasis in original), and thus is simply a time, place, and manner regulation. [n1] This analysis is misguided.
The fact that adult movie theaters may cause harmful "secondary" land use effects may arguably give Renton a compelling reason to regulate such establishments; it does not mean, however, that such regulations are content-neutral. [p57] Because the ordinance imposes special restrictions on certain kinds of speech on the basis of content, I cannot simply accept, as the Court does, Renton's claim that the ordinance was not designed to suppress the content of adult movies.
[W]hen regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited "merely because public officials disapprove the speaker's views."
Consolidated Edison Co., supra, at 536 (quoting Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result)). "[B]efore deferring to [Renton's] judgment, [we] must be convinced that the city is seriously and comprehensively addressing" secondary land use effects associated with adult movie theaters. Metromedia, Inc. v. San Diego, 453 U.S. 490, 531 (1981) (BRENNAN, J., concurring in judgment). In this case, both the language of the ordinance and its dubious legislative history belie the Court's conclusion that "the city's pursuit of its zoning interests here was unrelated to the suppression of free expression." Ante at 48.
The ordinance discriminates on its face against certain forms of speech based on content. Movie theaters specializing in "adult motion pictures" may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Other motion picture theaters, and other forms of "adult entertainment," such as bars, massage parlors, and adult bookstores, are not subject to the same restrictions. This selective treatment strongly suggests that Renton was interested not in controlling the "secondary effects" associated with adult businesses, but in discriminating against adult theaters based on the content of the films they exhibit. The Court ignores this discriminatory treatment, declaring that Renton is free "to address the potential problems created by one particular kind of adult business," ante at 52-53, and to amend the ordinance in the [p58] future to include other adult enterprises. Ante at 53 (citing Williamson v. Lee Optical Co., 348 U.S. 483, 488-489 (1955)). [n2] However, because of the First Amendment interests at stake here, this one-step-at-a-time analysis is wholly inappropriate.
This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See e.g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression.
[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.
Police Dept. of Chicago v. Mosley, 408 U.S. at 95.
Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 (1975).
In this case, the city has not justified treating adult movie theaters differently from other adult entertainment businesses. The ordinance's underinclusiveness is cogent evidence that it was aimed at the content of the films shown in adult movie theaters.
Shortly after this lawsuit commenced, the Renton City Council amended the ordinance, adding a provision explaining that its intention in adopting the ordinance had been
to promote the City of Renton's great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of urban life through effective land [p59] use planning.
App. to Juris. Statement 81a. The amended ordinance also lists certain conclusory "findings" concerning adult entertainment land uses that the Council purportedly relied upon in adopting the ordinance. Id. at 81a-86a. The city points to these provisions as evidence that the ordinance was designed to control the secondary effects associated with adult movie theaters, rather than to suppress the content of the films they exhibit. However, the "legislative history" of the ordinance strongly suggests otherwise.
Prior to the amendment, there was no indication that the ordinance was designed to address any "secondary effects" a single adult theater might create. In addition to the suspiciously coincidental timing of the amendment, many of the City Council's "findings" do not relate to legitimate land use concerns. As the Court of Appeals observed,
[b]oth the magistrate and the district court recognized that many of the stated reasons for the ordinance were no more than expressions of dislike for the subject matter.
748 F.2d 527, 537 (CA9 1984). [n3] That some residents may be offended by the content of the films shown at adult movie theaters cannot form the basis for state regulation of speech. See Terminiello v. Chicago, 337 U.S. 1 (1949).
Some of the "findings" added by the City Council do relate to supposed "secondary effects" associated with adult movie [p60] theaters. [n4] However, the Court cannot, as it does, merely accept these post hoc statements at face value.
[T]he presumption of validity that traditionally attends a local government's exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment.
Schad v. Mount Ephraim, 452 U.S. 61, 77 (1981) (BLACKMUN, J., concurring). As the Court of Appeals concluded, "[t]he record presented by Renton to support its asserted interest in enacting the zoning ordinance is very thin." 748 F.2d at 536.
The amended ordinance states that its "findings" summarize testimony received by the City Council at certain public hearings. While none of this testimony was ever recorded or preserved, a city official reported that residents had objected to having adult movie theaters located in their community. However, the official was unable to recount any testimony as to how adult movie theaters would specifically affect the schools, churches, parks, or residences "protected" by the ordinance. See App.190-192. The City Council conducted no studies, and heard no expert testimony, on how the protected uses would be affected by the presence of an adult movie theater, and never considered whether residents' concerns could be met by "restrictions that are less intrusive on protected forms of expression." Schad, supra, at 74. As a result, any "findings" regarding "secondary effects" caused by adult movie theaters, or the need to adopt specific locational requirements to combat such effects, were not "findings" at all, but purely speculative conclusions. Such "findings" were not such as are required to justify the burdens [p61] the ordinance imposed upon constitutionally protected expression.
The Court holds that Renton was entitled to rely on the experiences of cities like Detroit and Seattle, which had enacted special zoning regulations for adult entertainment businesses after studying the adverse effects caused by such establishments. However, even assuming that Renton was concerned with the same problems as Seattle and Detroit, it never actually reviewed any of the studies conducted by those cities. Renton had no basis for determining if any of the "findings" made by these cities were relevant to Renton's problems or needs. [n5] Moreover, since Renton ultimately adopted zoning regulations different from either Detroit or Seattle, these "studies" provide no basis for assessing the effectiveness of the particular restrictions adopted under the ordinance. [n6] Renton cannot merely rely on the general experiences [p62] of Seattle or Detroit, for it must "justify its ordinance in the context of Renton's problems -- not Seattle's or Detroit's problems." 748 F.2d at 536 (emphasis in original).
In sum, the circumstances here strongly suggest that the ordinance was designed to suppress expression, even that constitutionally protected, and thus was not to be analyzed as a content-neutral time, place, and manner restriction. The Court allows Renton to conceal its illicit motives, however, by reliance on the fact that other communities adopted similar restrictions. The Court's approach largely immunizes such measures from judicial scrutiny, since a municipality can readily find other municipal ordinances to rely upon, thus always retrospectively justifying special zoning regulations for adult theaters. [n7] Rather than speculate about Renton's motives for adopting such measures, our cases require the conclusion that the ordinance, like any other content-based restriction on speech, is constitutional "only if the [city] can show that [it] is a precisely drawn means of serving a compelling [governmental] interest." Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. at 540; see also Carey v. Brown, 447 U.S. 455, 461-462 (1980); Police Department of Chicago v. Mosley, 408 U.S. 92, 99 (1972). Only this strict approach can insure that cities will not use their zoning powers as a pretext for suppressing constitutionally protected expression. [p63]
Applying this standard to the facts of this case, the ordinance is patently unconstitutional. Renton has not shown that locating adult movie theaters in proximity to its churches, schools, parks, and residences will necessarily result in undesirable "secondary effects," or that these problems could not be effectively addressed by less intrusive restrictions.
Even assuming that the ordinance should be treated like a content-neutral time, place, and manner restriction, I would still find it unconstitutional.
[R]estrictions of this kind are valid, provided . . . that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981). In applying this standard, the Court
fails to subject the alleged interests of the [city] to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations.
Community for Creative Non-Violence, 468 U.S. at 301 (MARSHALL, J., dissenting). The Court
evidently [and wrongly] assumes that the balance struck by [Renton] officials is deserving of deference so long as it does not appear to be tainted by content discrimination.
Id. at 315. Under a proper application of the relevant standards, the ordinance is clearly unconstitutional.
The Court finds that the ordinance was designed to further Renton's substantial interest in "preserv[ing] the quality of urban life." Ante at 475 U.S. 50"]50. As explained above, the record here is simply insufficient to support this assertion. The city made no showing as to how uses "protected" by the ordinance would be affected by the presence of an adult movie theater. Thus, the Renton ordinance is clearly distinguishable from [p64] the Detroit zoning ordinance upheld in 50. As explained above, the record here is simply insufficient to support this assertion. The city made no showing as to how uses "protected" by the ordinance would be affected by the presence of an adult movie theater. Thus, the Renton ordinance is clearly distinguishable from [p64] the Detroit zoning ordinance upheld in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976). The Detroit ordinance, which was designed to disperse adult theaters throughout the city, was supported by the testimony of urban planners and real estate experts regarding the adverse effects of locating several such businesses in the same neighborhood. Id. at 55; see also Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 711, 585 P.2d 1153, 1154-1155 (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946 (1979) (Seattle zoning ordinance was the "culmination of a long period of study and discussion"). Here, the Renton Council was aware only that some residents had complained about adult movie theaters, and that other localities had adopted special zoning restrictions for such establishments. These are not "facts" sufficient to justify the burdens the ordinance imposed upon constitutionally protected expression.
Finally, the ordinance is invalid because it does not provide for reasonable alternative avenues of communication. The District Court found that the ordinance left 520 acres in Renton available for adult theater sites, an area comprising about five percent of the city. However, the Court of Appeals found that, because much of this land was already occupied, "[l]imiting adult theater uses to these areas is a substantial restriction on speech." 748 F.2d at 534. Many "available" sites are also largely unsuited for use by movie theaters. See App. 231, 241. Again, these facts serve to distinguish this case from American Mini Theatres, where there was no indication that the Detroit zoning ordinance seriously limited the locations available for adult businesses. See American Mini Theatres, supra, at 71, n. 35 (plurality opinion) ("The situation would be quite different if the ordinance had the effect of . . . greatly restricting access to . . . lawful speech"); see also Basiardanes v. City of Galveston, 682 F.2d 1203, 1214 (CA5 1982) (ordinance effectively banned adult theaters [p65] by restricting them to "‘the most unattractive, inaccessible, and inconvenient areas of a city'"); Purple Onion, Inc. v. Jackson, 511 F.Supp. 1207, 1217 (ND Ga.1981) (proposed sites for adult entertainment uses were either "unavailable, unusable, or so inaccessible to the public that . . . they amount to no locations").
Despite the evidence in the record, the Court reasons that the fact
[t]hat respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.
Ante at 54. However, respondents are not on equal footing with other prospective purchasers and lessees, but must conduct business under severe restrictions not imposed upon other establishments. The Court also argues that the First Amendment does not compel
the government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.
Ibid. However, respondents do not ask Renton to guarantee low-price sites for their businesses, but seek only a reasonable opportunity to operate adult theaters in the city. By denying them this opportunity, Renton can effectively ban a form of protected speech from its borders. The ordinance "greatly restrict[s] access to . . . lawful speech," American Mini Theatres, supra, at 71, n. 35 (plurality opinion), and is plainly unconstitutional.
1. The Court apparently finds comfort in the fact that the ordinance does not "deny use to those wishing to express less favored or more controversial views." Ante at 48-49. However, content-based discrimination is not rendered "any less odious" because it distinguishes "among entire classes of ideas, rather than among points of view within a particular class." Lehman v. City of Shaker Heights, 418 U.S. 298, 316 (1974) (BRENNAN, J., dissenting); see also Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 537 (1980) ("The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic."). Moreover, the Court's conclusion that the restrictions posed here were viewpoint-neutral is patently flawed.
As a practical matter, the speech suppressed by restrictions such as those involved [here] will almost invariably carry an implicit, if not explicit, message in favor of more relaxed sexual mores. Such restrictions, in other words, have a potent viewpoint-differential impact. . . . To treat such restrictions as viewpoint-neutral seems simply to ignore reality.
Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81, 111-112 (1978).
2. The Court also explains that
[t]here is no evidence that, at the time the Renton ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton.
Ante at 52. However, at the time the ordinance was enacted, there was no evidence that any adult movie theaters were located in, or considering moving to, Renton. Thus, there was no legitimate reason for the city to treat adult movie theaters differently from other adult businesses.
3. For example, "finding" number 2 states that
[l]ocation of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse effect of pornography upon children, established family relations, respect for marital relationship and for the sanctity of marriage relations of others, and the concept of nonaggressive, consensual sexual relations.
App. to Juris. Statement 86a.
"Finding" number 6 states that
[l]ocation of adult land uses in close proximity to residential uses, churches, parks, and other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the relationship between spouses.
4. For example, "finding" number 12 states that
[l]ocation of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels of criminal activities, including prostitution, rape, incest and assaults in the vicinity of such adult entertainment land uses.
Id. at 83a.
5. As part of the amendment passed after this lawsuit commenced, the City Council added a statement that it had intended to rely on the Washington Supreme Court's opinion in Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709, 585 P.2d 1153, (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946 (1979), which upheld Seattle's zoning regulations against constitutional attack. Again, despite the suspicious coincidental timing of the amendment, the Court holds that "Renton was entitled to rely . . . on the ‘detailed findings' summarized in the . . . Northend Cinema opinion." Ante at 51. In Northend Cinema, the court noted that "[t]he record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods." 90 Wash.2d at 719, 585 P.2d at 1159. The opinion however, does not explain the evidence it purports to summarize, and provides no basis for determining whether Seattle's experience is relevant to Renton's.
6. As the Court of Appeals observed:
Although the Renton ordinance purports to copy Detroit's and Seattle's, it does not solve the same problem in the same manner. The Detroit ordinance was intended to disperse adult theaters throughout the city, so that no one district would deteriorate due to a concentration of such theaters. The Seattle ordinance, by contrast, was intended to concentrate the theaters in one place, so that the whole city would not bear the effects of them. The Renton Ordinance is allegedly aimed at protecting certain uses -- schools, parks, churches and residential areas -- from the perceived unfavorable effects of an adult theater.
748 F.2d at 536 (emphasis in original).
7. As one commentator has noted:
[A]nyone with any knowledge of human nature should naturally assume that the decision to adopt almost any content-based restriction might have been affected by an antipathy on the part of at least some legislators to the ideas or information being suppressed. The logical assumption, in other words, is not that there is not improper motivation but, rather, because legislators are only human, that there is a substantial risk that an impermissible consideration has in fact colored the deliberative process.