[ OConnor ]
[ Scalia ]
[ Kennedy ]
[ Souter ]
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
CITY OF LOS ANGELES v. ALAMEDA BOOKS, INC., et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Based on its 1977 study concluding that concentrations of adult entertainment establishments are associated with higher crime rates in surrounding communities, petitioner city enacted an ordinance prohibiting such enterprises within 1,000 feet of each other or within 500 feet of a religious institution, school, or public park. Los Angeles Municipal Code §12.70(C) (1978). Because the ordinances method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure, the city later amended the ordinance to prohibit more than one adult entertainment business in the same building. §12.70(C) (1983). Respondents, two adult establishments that openly operate combined bookstores/video arcades in violation of §12.70(C), as amended, sued under 42 U.S.C. § 1983 for declaratory and injunctive relief, alleging that the ordinance, on its face, violates the First Amendment. Finding that the ordinance was not a content-neutral regulation of speech, the District Court reasoned that neither the 1977 study nor a report cited in Hart Book Stores v. Edmisten, a Fourth Circuit case upholding a similar statute, supported a reasonable belief that multiple-use adult establishments produce the secondary effects the city asserted as content-neutral justifications for its prohibition. Subjecting §12.70(C) to strict scrutiny, the court granted respondents summary judgment because it felt the city had not offered evidence demonstrating that its prohibition was necessary to serve a compelling government interest. The Ninth Circuit affirmed on the different ground that, 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 was designed to serve its substantial interest in reducing crime. The court therefore held the ordinance invalid under Renton v. Playtime Theatres, Inc., 475 U.S. 41, 723724.
Held: The judgment is reversed, and the case is remanded.
222 F.3d 719, reversed and remanded.
Justice OConnor, joined by The Chief Justice, Justice Scalia, and Justice Thomas, concluded that Los Angeles may reasonably rely on its 1977 study to demonstrate that its present ban on multiple-use adult establishments serves its interest in reducing crime. Pp. 515.
(a) The 1977 studys central component is a Los Angeles Police Department report indicating that, from 1965 to 1975, crime rates for, e.g., robbery and prostitution grew much faster in Hollywood, which had the citys largest concentration of adult establishments, than in the city as a whole. The city may reasonably rely on the police departments conclusions regarding crime patterns to overcome summary judgment. In finding to the contrary on the ground that the 1977 study focused on the effect on crime rates of a concentration of establishmentsnot a concentration of operations within a single establishmentthe Ninth Circuit misunderstood the studys implications. While the study reveals that areas with high concentrations of adult establishments are associated with high crime rates, such areas are also areas with high concentrations of adult operations, albeit each in separate establishments. It was therefore consistent with the 1977 studys findings, and thus reasonable, 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 Ninth Circuit nor respondents nor the dissent provides any reason to question the citys theory. If this Court were to accept their view, 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. Renton specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. The Court there 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 5152. This is not to say that a municipality can get away with shoddy data or reasoning. The municipalitys evidence must fairly support its rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipalitys evidence does not support its rationale or by furnishing evidence that disputes the municipalitys factual findings, the municipality meets the Renton standard. If plaintiffs succeed in casting doubt on a municipalitys 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. Paps A. M., 529 U.S. 277, 298. 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 citys justification for its ordinance is necessarily correct. Therefore, it must be concluded that the city, at this stage of the litigation, has complied with Rentons evidentiary requirement. Pp. 514.
(b) The Court need not resolve the parties dispute over whether the city can rely on evidence from Hart Book Stores to overcome summary judgment, nor respondents alternative argument that the ordinance is not a time, place, and manner regulation, but is effectively a ban on adult video arcades that must be subjected to strict scrutiny. Pp. 1415.
Justice Kennedy concluded that this Courts precedents may allow Los Angeles to impose its regulation in the exercise of the zoning authority, and that the city is not, at least, to be foreclosed by summary judgment. Pp. 110.
(a) Under Renton v. Playtime Theatres, Inc., 475 U.S. 41, if a city can decrease the crime and blight associated with adult businesses by exercising its zoning power, and at the same time leave the quantity and accessibility of speech substantially undiminished, there is no First Amendment objection, even if the measure identifies the problem outside the establishments by reference to the speech insidethat is, even if the measure is content based. On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself. For example, it may not impose a content-based fee or tax, see Arkansas Writers Project, Inc. v. Ragland, 481 U.S. 221, 230, even if the government purports to justify the fee by reference to secondary effects, see Forsyth County v. Nationalist Movement, 505 U.S. 123, 134135. That the ordinance at issue is more a typical land-use restriction than a law suppressing speech is suggested by the fact that it is not limited to expressive activities, but extends, e.g., to massage parlors, which the city has found to cause the same undesirable secondary effects; also, it is just one part of an elaborate web of land-use regulations intended to promote the social value of the land as a whole without suppressing some activities or favoring others. Thus, the ordinance is not so suspect that it must be subjected to the strict scrutiny that content-based laws demand in other instances. Rather, it calls for intermediate scrutiny, as Renton
held. Pp. 25.
(b) Rentons description of an ordinance similar to Los Angeles as content neutral, 475 U.S., at 48, was something of a fiction. These ordinances are content based, and should be so described. Nevertheless, Rentons central holding is sound. Pp. 56.
(c) The necessary rationale for applying intermediate scrutiny is the promise that zoning ordinances like the one at issue may reduce the costs of secondary effects without substantially reducing speech. If two adult businesses are under the same roof, an ordinance requiring them to separate will have one of two results: One business will either move elsewhere or close. The citys premise cannot be the latter. The premise must be that businesseseven those that have always been under one roofwill for the most part disperse rather than shut down, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced. As to whether there is sufficient evidence to support this proposition, the Court has consistently held that a city must have latitude to experiment, at least at the outset, and that very little evidence is required. See, e.g., Renton, supra, at 5152. Here, the proposition to be shown is supported by common experience and a study showing a correlation between the concentration of adult establishments and crime. Assuming that the study supports the citys original dispersal ordinance, most of the necessary analysis follows. To justify the ordinance at issue, the city may inferfrom its study and from its own experiencethat two adult businesses under the same roof are no better than two next door, and that knocking down the wall between the two would not ameliorate any undesirable secondary effects of their proximity to one another. If the citys first ordinance was justified, therefore, then the second is too. Pp. 610.
(d) Because these considerations seem well enough established in common experience and the Courts case law, the ordinance survives summary judgment. P. 10.
OConnor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined. Scalia, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in the judgment. Souter, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, and in which Breyer, J., joined as to Part II.