WHY AN UPCOMING SUPREME COURT CASE MAY PUSH "ADULT" SPEECH OUT OF NEIGHBORHOODS AND ONTO THE INTERNET

By JULIE HILDEN


julhil@aol.com
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Monday, Mar. 19, 2001

This month, the Supreme Court announced that it will review the case of City of Los Angeles v. Alameda Books, Inc. Previously in the case, the U.S. Court of Appeals for the Ninth Circuit struck down Los Angeles' attempt to ban "combination" adult businesses: those that both sell adult products, and allow on-site viewing of adult movies and videos. But the Supreme Court will probably reverse the Ninth Circuit's decision, rule in favor of Los Angeles, and reinstate the ban on these "combination" businesses — thus reaffirming the government's ability restrictively to regulate adult storefronts.

The Court, while often a friend of the First Amendment, often turns a cold shoulder to storeowners of adult businesses who raise their free speech rights, and rules for the government. Rather than recognizing these rights, the Court tends to allow restrictions on adult businesses ranging from bookstores (which, the Court has held, can be separated from each other throughhrough zoning) to strip clubs (within which, the Court has held, nude dancing can be banned).

If the City wins in Alameda Books, as it probably will, the Court will have added yet another weapon to cities' arsenal for fighting real world adult businesses. With online adult businesses, however, it's another matter entirely. In its important ruling on Internet adult speech in Reno v. ACLU, the Supreme Court ruled against the government — striking down the lion's share of the Communications Decency Act, a federal statute that attempted, among other things, to restrict Internet speech deemed to be obscene as to minors.

The Limited Free Speech Rights of "Real World" Adult Businesses

In its decision in Alameda Books, the Ninth Circuit held that the City of Los Angeles had made an insufficient factual showing to justify its ban on combination bookstore/arcades. Specifically, the court held that the city had failed to prove that such establishments, by themselves, would produce "harmful secondary effects," such as an increase in prostitution and other crimes.

When it hears the case, the Supreme Court will probably disagree with that holding, finding the City's proof more than sufficient. If the Court so holds, it will make another inroad into the very limited First Amendment protections real world adult businesses enjoy. And another blow to free speech in this area will, if it occurs, be particularly significant — for three principles that preceded Alameda Books already narrowed severely First Amendment protections for adult storeowners.

The first principle is that lax constitutional requirements apply to government "time, place, and manner" restrictions, making it easier for this type of law or regulation to survive court scrutiny. Examples of time, place and manner restrictions include, regulations limiting the number of adult businesses per block; stating how loud or late music can be played; and stating where members of a parade can and cannot march.

Time, place, and manner restrictions also likely include the Los Angeles regulation at issue in Alameda Books, limiting which businesses can be combined. Under Supreme Court jurisprudence, that law is probably a "place" restriction — the businesses can still operate, just not in the same buildings. It therefore would be subject to the lax standard, allowing the government's measure to easily pass constitutional muster.

The principle that time, place, and manner restrictions are especially difficult to challenge in court is significant, for zoning and similar measures are often used to combat the spread of real world adult businesses. It means that adult bookstores have an uphill battle.

The second principle is that "secondary effects" — such as the increase in crime that may occur if adult businesses create a red light district — can quite easily justify a time, place, and manner restriction, and thus form a valid basis for regulation.

The distinction between primary effects (the expressive effects from conveying a message, or convincing or persuading the listener) and secondary effects is somewhat specious, but it nonetheless persists. If the materials in your adult bookstore convince customers that sex with prostitutes is desirable, then the mere fact that they have been persuaded is a "primary effect" that cannot form the basis for regulation. But if prostitution springs up in the parking lot of your adult bookstore, according to the courts, the crime is a "secondary effect" that can justify regulating not just the prostitution, but also the bookstore itself.

The third and final relevant principle for real world adult businesses is that even a "time, place, and manner" restriction must leave ample alternative ways to convey the same information elsewhere. Put another way, a restriction that leaves no time, no place and no manner in which the speech can be conveyed is generally unconstitutional.

This last principle, unlike the previous two, should favor the First Amendment — and thus adult storeowners. But in fact, now that the availability of alternatives is, with new technologies, easy to prove, it no longer provides much of a bulwark against regulation.

Indeed, the availability of alternatives is likely to be converted from a free speech requirement into a justification for regulation. How long will it be before a city tries to ban all real world adult businesses by arguing that website alternatives provide other "places" or "manners" in which their owners can speak — ones without the nasty secondary effects of prostitution and other crimes that can accompany a real-world red light district that houses real-world adult businesses?

Especially in the future, when the Digital Divide is likely to be substantially closed, this argument may be a successful one. The type of attack Los Angeles launched on adult businesses, giving rise to Alameda Books, may be just the beginning.

Adult Businesses Online: Legal Advantages

While real world adult businesses are threatened from all sides — and Alameda Books may only increase the threat — Internet adult businesses, in contrast, can breathe relatively easily.

For one thing, as with many legal concepts, the three principles that have the effect of strictly regulating adult businesses in the real world, quickly fall apart when one tries to translate them to the Internet.

First, consider the principle that time, place, and manner restrictions such as zoning generally do not violate the First Amendment. That's easy to implement in the real world, through community zoning boards. But Internet zoning would be a huge, and likely unenforceable project upon which the government has not yet embarked, and likely never will embark.

Indeed, as mentioned above, one federal government attempt at Internet "zoning" — which effectively would have required websites to exclude children from areas such as chat rooms, where "adult" speech could take place — was rejected by the Supreme Court, in the case of Reno v. ACLU. There, the Court reasoned that adults could not be required to limit their communications only to speech fit for children, simply because children might be exposed to the speech by virtue of being among the many participants in a chat room. Adults' First Amendment protections, the Court held, were much stronger than that. Despite very strong social pressure to zone the Internet into children only/adult only zones, the Court refused to do so.

Second, consider the real-world principle that secondary effects can justify regulation, but primary effects cannot. On the Internet, secondary and primary effects of speech become impossible to differentiate — which may result in fewer restrictions being permissible.

Think about the primary/secondary effect difference this way: Suppose prostitution across the country rises in the next few years. The growth of online pornography could conceivably be to blame — but even if a cause-and-effect relationship could somehow be shown, it would be hard to argue that the increase in prostitution was anything but a First-Amendment protected primary effect of the pornography's expressive impact.

And on the Internet, there is probably no such thing as a red-light district — where evidence of the connection between adult businesses and prostitution and other crimes can be gathered. Moreover, even if one could argue that somehow there is an Internet red-light district equivalent — for example, if the e-mail system of a pornography website became by custom a place where prostitutes and johns communicated — regulation still might be impossible. If such a site were unaware of, and did not in any way encourage or sponsor the prostitution e-mails, how could it be shut down?

Finally, consider the principle that there must be alternative methods of communication if a restriction on real world adult businesses is to be justified. On the Internet, this requirement will virtually always be satisfied — for the Internet always provides a diversity of alternatives, including offshore sites. But equally, any restriction will be difficult to enforce. The very alternative that must constitutionally be present also guarantees that once posted, material can be copied and re-posted (or sold) elsewhere.

Should Adult Businesses Move Online?

After Reno v. ACLU, we must live with online adult speech — and even with children's access to it, unless private filtering systems and adult supervision can prevent that access. Many may believe, however, that if this is so, we should not also have to live with real world adult speech and products and their criminal offshoots. On this view, the move of adult businesses from real world to online would be a positive development.

If this move does occur — and I think it will — it should, however, give us pause, for we may wonder whether our legal regime should create incentives that lead speech that is — however unpleasant to some — entirely legal, to also become exclusively virtual. Will annoying street corner speakers, preachers, and proselytizers next be relegated to chat rooms alone?


FindLaw columnist Julie Hilden is a freelance writer. A graduate of Yale Law School, she practiced First Amendment law at the D.C. firm of Williams & Connolly from 1996-99. Her memoir, The Bad Daughter, was published by Algonquin Books in 1998, and she is currently working on a novel.

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