OCTOBER TERM, 2001
Syllabus
CITY OF LOS ANGELES
v. ALAMEDA BOOKS, INC., ETAL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 00-799. Argued December 4, 200l-Decided May 13,2002
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
ordinance's 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.
Held: The judgment is reversed, and the case is remanded.
222 F.3d
719, reversed and remanded.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE SCALIA,
and JUSTICE THOMAS, concluded that Los Angeles may reasonably
rely
426
on its 1977 study to demonstrate that its present ban on
multipleuse adult establishments serves its interest in reducing
crime. Pp. 433-443.
(a) The 1977 study's 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 city's largest concentration of adult
establishments, than in the city as a whole. The city may
reasonably rely on the police department's 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 establishments-not a
concentration of operations within a single establishment-the Ninth
Circuit misunderstood the study's 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
study's 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
city's 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 51-52. This is not to say that a municipality can get
away with shoddy data or reasoning. The municipality's evidence
must fairly support its 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
Renton standard. 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. 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 nec-
427
essarily correct. Therefore, it must be concluded that the city,
at this stage of the litigation, has complied with
Renton's
evidentiary requirement. Pp. 433-442.
(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. 442-443.
JUSTICE KENNEDY concluded that this Court's 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. 444-453.
(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 inside-that 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, 134-135. 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. 445-447.
(b)
Renton's 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,
Renton's central holding is sound.
Pp. 448-449.
(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 requir-
428
ing them to separate will have one of two results: One business
will either move elsewhere or close. The city's premise cannot be
the latter. The premise must be that businesses-even those that
have always been under one roof-will 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 51-52. 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 city's original dispersal
ordinance, most of the necessary analysis follows. To justify the
ordinance at issue, the city may infer-from its study and from its
own experience-that 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 city's first ordinance was
justified, therefore, then the second is too. Pp. 449-453.
(d) Because these considerations seem well enough established in
common experience and the Court's case law, the ordinance survives
summary judgment. P. 453.
O'CONNOR, 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,
post, p.
443. KENNEDY, J., filed an opinion concurring in the judgment,
post, p. 444. SOUTER, J., filed a dissenting opinion, in
which STEVENS and GINSBURG, JJ., joined, and in which BREYER, J.,
joined as to Part II,
post, p. 453.
Michael L. Klekner argued the cause for petitioner. With him on
the briefs were James K. Hahn, Rockard
J. Delgadillo,
Claudia McGee Henry, Anthony Saul Alperin, and Jeri Burge.
John H. Weston argued the cause for respondent. With him
on the briefs was G.
Randall Garrou. *
*Briefs of
amici curiae urging reversal were filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio,
David M. Gormley, State Solicitor, and
Elise W Porter, joined by the Attorneys General for their
respective jurisdictions as follows:
Bill Pryor of Ala-
429
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 contentneutral regulation, the city failed to
demonstrate that the
barna,
Janet Napolitano of Arizona,
Ken Salazar of
Colorado,
Richard Blumenthal of Connecticut,
M. Jane
Brady of Delaware,
Robert A. Butterworth of Florida,
Alan G.
Lance of Idaho,
Carla J.
Stovall of Kansas, G.
Steven Rowe of Maine,
Thomas F.
Reilly of Massachusetts,
Mike Moore
of Mississippi,
Mike McGrath of Montana,
Don Stenberg
of Nebraska,
Frankie Sue Del Papa of Nevada,
Roy
Cooper of North Carolina,
Herbert D. Soll of the
Commonwealth of the Northern Mariana Islands,
Mike Fisher of
Pennsylvania,
Charles M. Condon of South Carolina,
Mark
Barnett of South Dakota,
John Cornyn of Texas,
Mark
L. Shurtleff of Utah,
Christine O.
Gregoire of
Washington,
Darrell V. McGraw, Jr., of West Virginia, and
Gay Woodhouse of Wyoming; for the American Planning
Association et al. by
Scott D. Bergthold; for the Capitol
Resource Institute et al. by
Richard D. Ackerman and
Gary G.
Kreep; for Morality in Media, Inc., by
Paul J. McGeady and
Robin S.
Whitehead; and for the U. S. Conference of Mayors et al. by
Richard Ruda and
James I. Crowley.
Briefs of
amici curiae urging affirmance were filed for
the American Booksellers Foundation for Free Expression et al. by
Michael A. Bamberger; for the DKT Liberty Project by
Julie M. Carpenter; and for the First Amendment Lawyers
Association by
Randall D. B. Tigue and
Bradley
J. Shafer.
430
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.
744521-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
431
(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
432
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
433
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 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,
434
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 demon-
435
strate, 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, supra, a case that upheld a North Carolina statute
similar to the Los Angeles ordinance challenged in this case.
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
436
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.
437
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. I t 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
438
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
munici-
439
pality'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 freestanding
single-use adult establishments reduce crime. See
post, at
460-462 (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
440
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. On 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, 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. 475 U. S., 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
441
ordinance "were with the secondary effects of adult [speech],
and not with the content of adult [speech]."
Id., at 47
(emphasis deleted). 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 457-458.
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
442
when "common experience" or "common assumptions" are incorrect,
see
post, at 459, 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
Erie, 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.
Id., at 296.
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 828-829, 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.
443
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 449 (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.
JUSTICE SCALIA, concurring.
I join the plurality opinion because I think it represents a
correct application of our jurisprudence concerning regulation of
the "secondary effects" of pornographic speech. As I have said
elsewhere, however, in a case such as this our First Amendment
traditions make "secondary effects" analysis quite unnecessary. The
Constitution does not prevent those communities that wish to do so
from regulating, or indeed entirely suppressing, the business of
pander-
444
ing sex. See,
e. g., Erie v.
Pap's A. M., 529 U. S. 277, 310 (2000)
(SCALIA, J., concurring in judgment);
FW/PBS, Inc. v.
Dallas, 493 U.
S. 215, 256-261 (1990) (SCALIA, J., concurring in part and
dissenting in part).
JUSTICE KENNEDY, concurring in the judgment.
Speech can produce tangible consequences. It can change minds.
It can prompt actions. These primary effects signify the power and
the necessity of free speech. Speech can also cause secondary
effects, however, unrelated to the impact of the speech on its
audience. A newspaper factory may cause pollution, and a billboard
may obstruct a view. These secondary consequences are not always
immune from regulation by zoning laws even though they are produced
by speech.
Municipal governments know that high concentrations of adult
businesses can damage the value and the integrity of a
neighborhood. The damage is measurable; it is all too real. The law
does not require a city to ignore these consequences if it uses its
zoning power in a reasonable way to ameliorate them without
suppressing speech. A city's "interest in attempting to preserve
the quality of urban life is one that must be accorded high
respect."
Young v.
American Mini Theatres, Inc.,
427 U. S. 50, 71
(1976) (plurality opinion).
The question in this case is whether Los Angeles can seek to
reduce these tangible, adverse consequences by separating adult
speech businesses from one another-even two businesses that have
always been under the same roof. In my view our precedents may
allow the city to impose its regulation in the exercise of the
zoning authority. The city is not, at least, to be foreclosed by
summary judgment, so I concur in the judgment.
This separate statement seems to me necessary, however, for two
reasons. First,
Renton v.
Playtime Theatres, Inc.,
475 U. S. 41
(1986), described a similar ordinance as "content neutral," and I
agree with the dissent that the designation
445
IS Imprecise. Second, in my view, the plurality's application of
Renton might constitute a subtle expansion, with which I do
not concur.
I
In
Renton, the Court determined that while the material
inside adult bookstores and movie theaters is speech, the
consequent sordidness outside is not. The challenge is to correct
the latter while leaving the former, as far as possible, untouched.
If a city can decrease the crime and blight associated with certain
speech by the traditional exercise of its zoning power, and at the
same time leave the quantity and accessibility of the speech
substantially undiminished, there is no First Amendment objection.
This is so even if the measure identifies the problem outside by
reference to the speech inside-that is, even if the measure is in
that sense content based.
On the other hand, a city may not regulate the secondary effects
of speech by suppressing the speech itself. A city may not, for
example, impose a content-based fee or tax. See
Arkansas
Writers' Project, Inc. v.
Ragland, 481 U. S. 221, 230 (1987)
("[O]fficial scrutiny of the content of publications as the basis
for imposing a tax is entirely incompatible with the First
Amendment's guarantee of freedom of the press"). This is true even
if the government purports to justify the fee by reference to
secondary effects. See
Forsyth County v.
Nationalist
Movement, 505 U.
S. 123, 134-135 (1992). Though the inference may be inexorable
that a city could reduce secondary effects by reducing speech, this
is not a permissible strategy. The purpose and effect of a zoning
ordinance must be to reduce secondary effects and not to reduce
speech.
A zoning measure can be consistent with the First Amendment if
it is likely to cause a significant decrease in secondary effects
and a trivial decrease in the quantity of speech. It is well
documented that multiple adult businesses in close proximity may
change the character of a neighborhood
446
for the worse. Those same businesses spread across the city may
not have the same deleterious effects. At least in theory, a
dispersal ordinance causes these businesses to separate rather than
to close, so negative externalities are diminished but speech is
not.
The calculus is a familiar one to city planners, for many
enterprises other than adult businesses also cause undesirable
externalities. Factories, for example, may cause pollution, so a
city may seek to reduce the cost of that externality by restricting
factories to areas far from residential neighborhoods. With careful
urban planning a city in this way may reduce the costs of pollution
for communities, while at the same time allowing the productive
work of the factories to continue. The challenge is to protect the
activity inside while controlling side effects outside.
Such an ordinance might, like a speech restriction, be "content
based." It might, for example, single out slaughterhouses for
specific zoning treatment, restricting them to a particularly
remote part of town. Without knowing more, however, one would
hardly presume that because the ordinance is specific to that
business, the city seeks to discriminate against it or help a
favored group. One would presume, rather, that the ordinance
targets not the business but its particular noxious side effects.
But cf.
SlaughterHouse Cases, 16 Wall. 36 (1873). The
business might well be the city's most valued enterprise;
nevertheless, because of the pollution it causes, it may warrant
special zoning treatment. This sort of singling out is not
impermissible content discrimination; it is sensible urban
planning. Cf.
Village of Euclid v.
Ambler Realty Co.,
272 U. S. 365,
388 (1926) ("A nuisance may be merely a right thing in the wrong
place,-like a pig in the parlor instead of the barnyard. If the
validity of the legislative classification for zoning purposes be
fairly debatable, the legislative judgment must be allowed to
control").
447
True, the First Amendment protects speech and not
slaughterhouses. But in both contexts, the inference of
impermissible discrimination is not strong. An equally strong
inference is that the ordinance is targeted not at the activity,
but at its side effects. If a zoning ordinance is directed to the
secondary effects of adult speech, the ordinance does not
necessarily constitute impermissible content discrimination. A
zoning law need not be blind to the secondary effects of adult
speech, so long as the purpose of the law is not to suppress
it.
The ordinance at issue in this case is not limited to expressive
activities. It also extends, for example, to massage parlors, which
the city has found to cause similar secondary effects. See Los
Angeles Municipal Code §§ 12.70(B)(8) (1978), 12.70(B)(17) (1983),
12.70(C) (1986), as amended. This ordinance, moreover, is just one
part of an elaborate web of land-use regulations in Los Angeles,
all of which are intended to promote the social value of the land
as a whole without suppressing some activities or favoring others.
See § 12.02 ("The purpose of this article is to consolidate and
coordinate all existing zoning regulations and provisions intoone
comprehensive zoning plan ... in order to encourage the most
appropriate use of land ... and to promote the health, safety, and
the general welfare... ". All this further suggests that the
ordinance is more in the nature of a typical land-use restriction
and less in the nature of a law suppressing speech.
For these reasons, the ordinance is not so suspect that we must
employ the usual rigorous analysis that content-based laws demand
in other instances. The ordinance may be a covert attack on speech,
but we should not presume it to be so. In the language of our First
Amendment doctrine it calls for intermediate and not strict
scrutiny, as we held in
Renton.
448
II
In
Renton, the Court began by noting that a zoning
ordinance is a time, place, or manner restriction. The Court then
proceeded to consider the question whether the ordinance was
"content based." The ordinance "by its terms [was] designed to
prevent crime, protect the city's retail trade, maintain property
values, and generally protec[t] and preserv[e] the quality of [the
city's] neighborhoods, commercial districts, and the quality of
urban life, not to suppress the expression of unpopular views." 475
U. S., at 48 (internal quotation marks omitted). On this premise,
the Court designated the restriction "content neutral."
Ibid.
The Court appeared to recognize, however, that the designation
was something of a fiction, which, perhaps, is why it kept the
phrase in quotes. After all, whether a statute is content neutral
or content based is something that can be determined on the face of
it; if the statute describes speech by content then it is content
based. And the ordinance in
Renton "treat[ed] theaters that
specialize in adult films differently from other kinds of
theaters."
Id., at 47. The fiction that this sort of
ordinance is content neutral-or "content neutral"-is perhaps more
confusing than helpful, as JUSTICE SOUTER demonstrates, see
post, at 457 (dissenting opinion). It is also not a fiction
that has commanded our consistent adherence. See
Thomas v.
Chicago Park Dist., 534 U. S. 316, 322, and
n. 2 (2002) (suggesting that a licensing scheme targeting only
those businesses purveying sexually explicit speech is not content
neutral). These ordinances are content based, and we should call
them so.
Nevertheless, for the reasons discussed above, the central
holding of
Renton is sound: A zoning restriction that is
designed to decrease secondary effects and not speech should be
subject to intermediate rather than strict scrutiny. Generally, the
government has no power to restrict speech based on content, but
there are exceptions to the rule. See
Simon &
Schuster, Inc. v.
Members of N.
Y. State
Crime
449
Victims Bd., 502 U. S. 105, 126-127
(1991) (KENNEDY, J., concurring in judgment). And zoning
regulations do not automatically raise the specter of impermissible
content discrimination, even if they are content based, because
they have a prima facie legitimate purpose: to limit the negative
externalities of land use. As a matter of common experience, these
sorts of ordinances are more like a zoning restriction on
slaughterhouses and less like a tax on unpopular newspapers. The
zoning context provides a built-in legitimate rationale, which
rebuts the usual presumption that content-based restrictions are
unconstitutional. For this reason, we apply intermediate rather
than strict scrutiny.
III
The narrow question presented in this case is whether the
ordinance at issue is invalid "because the city did not study the
negative effects of such combinations of adult businesses, but
rather relied on judicially approved statutory precedent from other
jurisdictions." Pet. for Cert. i. This question is actually two
questions. First, what proposition does a city need to advance in
order to sustain a secondary-effects ordinance? Second, how much
evidence is required to support the proposition? The plurality
skips to the second question and gives the correct answer; but in
my view more attention must be given to the first.
At the outset, we must identify the claim a city must make in
order to justify a content-based zoning ordinance. As discussed
above, a city must advance some basis to show that its regulation
has the purpose and effect of suppressing secondary effects, while
leaving the quantity and accessibility of speech substantially
intact. The ordinance may identify the speech based on content, but
only as a shorthand for identifying the secondary effects outside.
A city may not assert that it will reduce secondary effects by
reducing speech in the same proportion. On this point, I agree with
JUSTICE SOUTER. See
post, at 457. The rationale of
450
the ordinance must be that it will suppress secondary
effects-and not by suppressing speech.
The plurality's statement of the proposition to be supported is
somewhat different. It suggests that Los Angeles could reason as
follows: (1) "a concentration of operations in one locale draws ...
a greater concentration of adult consumers to the neighborhood, and
a high density of such consumers either attracts or generates
criminal activity"; (2) "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"; (3) "reducing the concentration of adult operations in
a neighborhood, whether within separate establishments or in one
large establishment, will reduce crime rates."
Ante, at
436.
These propositions all seem reasonable, and the inferences
required to get from one to the next are sensible. N evertheless,
this syllogism fails to capture an important part of the inquiry.
The plurality's analysis does not address how speech will fare
under the city's ordinance. As discussed, the necessary rationale
for applying intermediate scrutiny is the promise that zoning
ordinances like this one may reduce the costs of secondary effects
without substantially reducing speech. For this reason, it does not
suffice to say that inconvenience will reduce demand and fewer
patrons will lead to fewer secondary effects. This reasoning would
as easily justify a content-based tax: Increased prices will reduce
demand, and fewer customers will mean fewer secondary effects. But
a content-based tax may not be justified in this manner. See
Arkansas Writers' Project, Inc. v.
Ragland, 481 U. S. 221 (1987);
Forsyth County v.
Nationalist Movement, 505 U. S. 123 (1992). It
is no trick to reduce secondary effects by reducing speech or its
audience; but a city may not attack secondary effects indirectly by
attacking speech.
The analysis requires a few more steps. If two adult businesses
are under the same roof, an ordinance requiring them
451
to separate will have one of two results: One business will
either move elsewhere or close. The city's premise cannot be the
latter. It is true that cutting adult speech in half would probably
reduce secondary effects proportionately. But again, a promised
proportional reduction does not suffice. Content-based taxes could
achieve that, yet these are impermissible.
The premise, therefore, must be that businesses-even those that
have always been under one roof-will for the most part disperse
rather than shut down. True, this premise has its own conundrum. As
JUSTICE SOUTER writes, "[t]he city ... claims no interest in the
proliferation of adult establishments."
Post, at 461. The
claim, therefore, must be that this ordinance will cause two
businesses to split rather than one to close, that the quantity of
speech will be substantially undiminished, and that total secondary
effects will be significantly reduced. This must be the rationale
of a dispersal statute.
Only after identifying the proposition to be proved can we ask
the second part of the question presented: is there sufficient
evidence to support the proposition? As to this, we have
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, 475 U. S., at 51-52 ("The First
Amendment does not require a city, before enacting such an
ordinance, to conduct new studies or produce evidence independent
of that already generated by other cities, so long as whatever
evidence the city relies upon is reasonably believed to be relevant
to the problem that the city addresses");
Young, 427 U. S.,
at 71 ("[T]he city must be allowed a reasonable opportunity to
experiment with solutions to admittedly serious problems");
Erie v.
Pap's A. M., 529 U. S. 277, 300-301
(2000) (plurality opinion). As a general matter, courts should not
be in the business of secondguessing fact-bound empirical
assessments of city planners. See
Renton, supra, at 51-52.
The Los Angeles City Coun-
452
cil knows the streets of Los Angeles better than we do. See
Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 665-666
(1994);
Erie, supra, at 297-298 (plurality opinion). It is
entitled to rely on that knowledge; and if its inferences appear
reasonable, we should not say there is no basis for its
conclusion.
In this case the proposition to be shown is supported by a
single study and common experience. The city's study shows a
correlation between the concentration of adult establishments and
crime. Two or more adult businesses in close proximity seem to
attract a critical mass of unsavory characters, and the crime rate
may increase as a result. The city, therefore, sought to disperse
these businesses. Los Angeles Municipal Code § 12.70(C) (1983), as
amended. This original ordinance is not challenged here, and we may
assume that it is constitutional.
If we assume that the study supports the original ordinance,
then most of the necessary analysis follows. We may posit that two
adult stores next door to each other attract 100 patrons per day.
The two businesses split apart might attract 49 patrons each. (Two
patrons, perhaps, will be discouraged by the inconvenience of the
separation-a relatively small cost to speech.) On the other hand,
the reduction in secondary effects might be dramatic, because
secondary effects may require a critical mass. Depending on the
economics of vice, 100 potential customers/victims might attract a
coterie of thieves, prostitutes, and other ne'er-do-wells; yet 49
might attract none at all. If so, a dispersal ordinance would cause
a great reduction in secondary effects at very small cost to
speech. Indeed, the very absence of secondary effects might
increase the audience for the speech; perhaps for every two people
who are discouraged by the inconvenience of two-stop shopping,
another two are encouraged by hospitable surroundings. In that
case, secondary effects might be eliminated at no cost to
453
speech whatsoever, and both the city and the speaker will have
their interests well served.
Only one small step remains to justify the ordinance at issue in
this case. The city may next infer-from its study and from its own
experience-that two adult businesses under the same roof are no
better than two next door. The city could reach the reasonable
conclusion that knocking down the wall between two adult businesses
does not ameliorate any undesirable secondary effects of their
proximity to one another. If the city's first ordinance was
justified, therefore, then the second is too. Dispersing two adult
businesses under one roof is reasonably likely to cause a
substantial reduction in secondary effects while reducing speech
very little.
IV
These propositions are well established in common experience and
in zoning policies that we have already examined, and for these
reasons this ordinance is not invalid on its face. If these
assumptions can be proved unsound at trial, then the ordinance
might not withstand intermediate scrutiny. The ordinance does,
however, survive the summary judgment motion that the Court of
Appeals ordered granted in this case.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, and with whom JUSTICE BREYER joins as to Part II,
dissenting.
In 1977, the city of Los Angeles studied sections of the city
with high and low concentrations of adult business establishments
catering to the market for the erotic. The city found no certain
correlation between the location of those establishments and
depressed property values, but it did find some correlation between
areas of higher concentrations of such business and higher crime
rates. On that basis, Los Angeles followed the examples of other
cities in adopting a zoning ordinance requiring dispersion of
adult
454
establishments. I assume that the ordinance was constitutional
when adopted, see,
e. g., Young v.
American Mini
Theatres, Inc., 427 U. S. 50 (1976), and
assume for purposes of this case that the original ordinance
remains valid today. 1
The city subsequently amended its ordinance to forbid clusters
of such businesses at one address, as in a mall. The city has, in
turn, taken a third step to apply this amendment to prohibit even a
single proprietor from doing business in a traditional way that
combines an adult bookstore, selling books, magazines, and videos,
with an adult arcade, consisting of open viewing booths, where
potential purchasers of videos can view them for a fee.
From a policy of dispersing adult establishments, the city has
thus moved to a policy of dividing them in two. The justification
claimed for this application of the new policy remains, however,
the 1977 survey, as supplemented by the authority of one decided
case on regulating adult arcades in another State. The case
authority is not on point, see
infra, at 461-462, n. 4, and
the 1977 survey provides no support for the breakup policy. Its
evidentiary insufficiency bears emphasis and is the principal
reason that I respectfully dissent from the Court's judgment
today.
I
This ordinance stands or falls on the results of what our cases
speak of as intermediate scrutiny, generally contrasted with the
demanding standard applied under the First Amendment to a
content-based regulation of expression. The variants of middle-tier
tests cover a grab bag of restrictive statutes, with a
corresponding variety of justifications.
1 Although
amicus First Amendment Lawyers Association
argues that recent studies refute the findings of adult business
correlations with secondary effects sufficient to justify such an
ordinance, Brief for First Amendment Lawyers Association as
Amicus Curiae 21-23, the issue is one I do not reach.
455
While spoken of as content neutral, these regulations are not
uniformly distinct from the content-based regulations calling for
scrutiny that is strict, and zoning of businesses based on their
sales of expressive adult material receives mid-level scrutiny,
even though it raises a risk of content-based restriction. It is
worth being clear, then, on how close to a content basis adult
business zoning can get, and why the application of a middle-tier
standard to zoning regulation of adult bookstores calls for
particular care.
Because content-based regulation applies to expression by very
reason of what is said, it carries a high risk that expressive
limits are imposed for the sake of suppressing a message that is
disagreeable to listeners or readers, or the government. See
Consolidated Edison Co. of N.
Y. v.
Public Servo
Comm'n of N.
Y., 447 U. S. 530, 536 (1980)
("[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" (internal quotation marks
omitted)). A restriction based on content survives only on a
showing of necessity to serve a legitimate and compelling
governmental interest, combined with least restrictive narrow
tailoring to serve it, see
United States v.
Playboy
Entertainment Group, Inc., 529 U. S. 803, 813
(2000); since merely protecting listeners from offense at the
message is not a legitimate interest of the government, see
Cohen v.
California, 403 U. S. 15, 24-25
(1971), strict scrutiny leaves few survivors.
The comparatively softer intermediate scrutiny is reserved for
regulations justified by something other than content of the
message, such as a straightforward restriction going only to the
time, place, or manner of speech or other expression. It is easy to
see why review of such a regulation may be relatively relaxed. No
one has to disagree with any message to find something wrong with a
loudspeaker at three in the morning, see
Kovacs v.
Cooper, 336 U. S. 77
456
(1949); the sentiment may not provoke, but being blasted out of
a sound sleep does. In such a case, we ask simply whether the
regulation is "narrowly tailored to serve a significant
governmental interest, and ... leave[s] open ample alternative
channels for communication of the information."
Clark v.
Community for Creative Non-Violence, 468 U. S. 288, 293
(1984). A middle-tier standard is also applied to limits on
expression through action that is otherwise subject to regulation
for nonexpressive purposes, the best known example being the
prohibition on destroying draft cards as an act of protest,
United States v.
O'Brien, 391 U. S. 367 (1968);
here a regulation passes muster "if it furthers an important or
substantial governmental interest ... unrelated to the suppression
of free expression" by a restriction "no greater than is essential
to the furtherance of that interest,"
id., at 377. As
mentioned already, yet another middle-tier variety is zoning
restriction as a means of responding to the "secondary effects" of
adult businesses, principally crime and declining property values
in the neighborhood.
Renton v.
Playtime Theatres,
Inc., 475 U. S.
41, 49 (1986).2
Although this type of land-use restriction has even been called
a variety of time, place, or manner regulation,
id., at 46,
equating a secondary-effects zoning regulation with a mere
regulation of time, place, or manner jumps over an important
difference between them. A restriction on loudspeakers has no
obvious relationship to the substance of
2 Limiting such effects qualifies as a substantial governmental
interest, and an ordinance has been said to survive if it is shown
to serve such ends without unreasonably limiting alternatives.
Renton, 475 U. S., at 50. Because
Renton called its
secondary-effects ordinance a mere time, place, or manner
restriction and thereby glossed over the role of content in
secondary-effects zoning, see
infra this page and 457, I
believe the soft focus of its statement of the middle-tier test
should be rejected in favor of the
United States v.
O'Brien, 391
U. S. 367 (1968), formulation quoted above.
O'Brien is a
closer relative of secondary-effects zoning than mere time, place,
or manner regulations, as the Court has implicitly recognized.
Erie v.
Pap's A. M., 529 U. S. 277, 289 (2000)
(plurality opinion).
457
what is broadcast, while a zoning regulation of businesses in
adult expression just as obviously does. And while it may be true
that an adult business is burdened only because of its secondary
effects, it is clearly burdened only if its expressive products
have adult content. Thus, the Court has recognized that this kind
of regulation, though called content neutral, occupies a kind of
limbo between full-blown, contentbased restrictions and regulations
that apply without any reference to the substance of what is said.
Id., at 47.
It would in fact make sense to give this kind of zoning
regulation a First Amendment label of its own, and if we called it
content correlated, we would not only describe it for what it is,
but keep alert to a risk of content-based regulation that it poses.
The risk lies in the fact that when a law applies selectively only
to speech of particular content, the more precisely the content is
identified, the greater is the opportunity for government
censorship. Adult speech refers not merely to sexually explicit
content, but to speech reflecting a favorable view of being
explicit about sex and a favorable view of the practices it
depicts; a restriction on adult content is thus also a restriction
turning on a particular viewpoint, of which the government may
disapprove.
This risk of viewpoint discrimination is subject to a relatively
simple safeguard, however. If combating secondary effects of
property devaluation and crime is truly the reason for the
regulation, it is possible to show by empirical evidence that the
effects exist, that they are caused by the expressive activity
subject to the zoning, and that the zoning can be expected either
to ameliorate them or to enhance the capacity of the government to
combat them (say, by concentrating them in one area), without
suppressing the expressive activity itself. This capacity of zoning
regulation to address the practical problems without eliminating
the speech is, after all, the only possible excuse for speaking of
secondary-effects zoning as akin to time, place, or manner
regulations.
458
In exammmg claims that there are causal relationships between
adult businesses and an increase in secondary effects (distinct
from disagreement), and between zoning and the mitigation of the
effects, stress needs to be placed on the empirical character of
the demonstration available. See
Metromedia, Inc. v.
San
Diego, 453 U. S.
490, 510 (1981) ("[J]udgments ... defying objective evaluation
... must be carefully scrutinized to determine if they are only a
public rationalization of an impermissible purpose");
Young,
427 U. S., at 84 (Powell, J., concurring) ("[C]ourts must be alert
... to the possibility of using the power to zone as a pretext for
suppressing expression"). The weaker the demonstration of facts
distinct from disapproval of the "adult" viewpoint, the greater the
likelihood that nothing more than condemnation of the viewpoint
drives the regulation.3
Equal stress should be placed on the point that requiring
empirical justification of claims about property value or crime is
not demanding anything Herculean. Increased crime, like
prostitution and muggings, and declining property values in areas
surrounding adult businesses, are all readily observable, often to
the untrained eye and certainly to the police officer and urban
planner. These harms can be shown by police reports, crime
statistics, and studies of mar-
3 Regulation of commercial speech, which is like
secondary-effects zoning in being subject to an intermediate level
of First Amendment scrutiny, see
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N. Y.,
447 U. S. 557, 569
(1980), provides an instructive parallel in the cases enforcing an
evidentiary requirement to ensure that an asserted rationale does
not cloak an illegitimate governmental motive. See,
e. g.,
Rubin v.
Coors Brewing Co., 514 U. S. 476, 487
(1995);
Edenfield v.
Fane, 507 U. S. 761 (1993). The
government's "burden is not satisfied by mere speculation or
conjecture," but only by "demonstrat[ing] that the harms [the
government] recites are real and that its restriction will in fact
alleviate them to a material degree."
Id., at 770-771. For
unless this "critical" requirement is met,
Rubin, supra, at
487, "a State could with ease restrict commercial speech in the
service of other objectives that could not themselves justify a
burden on commercial expression,"
Edenfield, supra, at
771.
459
ket value, all of which are within a municipality's capacity or
available from the distilled experiences of comparable communities.
See,
e. g., Renton, supra, at 51;
Young, supra, at
55.
And precisely because this sort of evidence is readily
available, reviewing courts need to be wary when the government
appeals, not to evidence, but to an uncritical common sense in an
effort to justify such a zoning restriction. It is not that common
sense is always illegitimate in First Amendment demonstration. The
need for independent proof varies with the point that has to be
established, and zoning can be supported by common experience when
there is no reason to question it. We have appealed to common sense
in analogous cases, even if we have disagreed about how far it took
us. See
Erie v.
Pap's A. M., 529 U. S. 277, 300-301
(2000) (plurality opinion);
id., at 313, and n. 2 (SOUTER,
J., concurring in part and dissenting in part). But we must be
careful about substituting common assumptions for evidence, when
the evidence is as readily available as public statistics and
municipal property valuations, lest we find out when the evidence
is gathered that the assumptions are highly debatable. The record
in this very case makes the point. It has become a commonplace,
based on our own cases, that concentrating adult establishments
drives down the value of neighboring property used for other
purposes. See
Renton, 475 U. S., at
51; Young, supra,
at 55. In fact, however, the city found that general assumption
unjustified by its 1977 study. App. 39,45.
The lesson is that the lesser scrutiny applied to
contentcorrelated zoning restrictions is no excuse for a
government's failure to provide a factual demonstration for claims
it makes about secondary effects; on the contrary, this is what
demands the demonstration. See,
e. g., Schad v.
Mount
Ephraim, 452 U. S.
61, 72-74 (1981). In this case, however, the government has not
shown that bookstores containing viewing booths, isolated from
other adult establishments, in-
460
crease crime or produce other negative secondary effects in
surrounding neighborhoods, and we are thus left without substantial
justification for viewing the city's First Amendment restriction as
content correlated but not simply content based. By the same token,
the city has failed to show any causal relationship between the
breakup policy and elimination or regulation of secondary
effects.
II
Our cases on the subject have referred to studies, undertaken
with varying degrees of formality, showing the geographical
correlations between the presence or concentration of adult
business establishments and enhanced crime rates or depressed
property values. See,
e. g., Renton, supra, at
50-51;
Young, 427 U. S., at 55. Although we have held that
intermediate scrutiny of secondary-effects legislation does not
demand a fresh evidentiary study of its factual basis if the
published results of investigations elsewhere are "reasonably"
thought to be applicable in a different municipal setting,
Renton, supra, at 51-52, the city here took responsibility
to make its own enquiry, App. 35-162. As already mentioned, the
study was inconclusive as to any correlation between adult business
and lower property values,
id., at 45, and it reported no
association between higher crime rates and any isolated adult
establishments. But it did find a geographical correlation of
higher concentrations of adult establishments with higher crime
rates,
id., at 43, and with this study in hand, Los Angeles
enacted its 1978 ordinance requiring dispersion of adult stores and
theaters. This original position of the ordinance is not challenged
today, and I will assume its justification on the theory accepted
in
Young, that eliminating concentrations of adult
establishments will spread out the documented secondary effects and
render them more manageable that way.
The application of the 1983 amendment now before us is, however,
a different matter. My concern is not with the
461
assumption behind the amendment itself, that a conglomeration of
adult businesses under one roof, as in a minimall or adult
department store, will produce undesirable secondary effects
comparable to what a cluster of separate adult establishments
brings about,
ante, at 436. That mayor may not be so. The
assumption that is clearly unsupported, however, goes to the city's
supposed interest in applying the amendment to the book and video
stores in question, and in applying it to break them up. The city,
of course, claims no interest in the proliferation of adult
establishments, the ostensible consequence of splitting the sales
and viewing activities so as to produce two stores where once there
was one. Nor does the city assert any interest in limiting the sale
of adult expressive material as such, or reducing the number of
adult video booths in the city, for that would be clear
content-based regulation, and the city was careful in its 1977
report to disclaim any such intent. App. 54.4
4 Finally, the city does not assert an interest in curbing any
secondary effects within the combined bookstore-arcades. In
Hart
Book Stores, Inc. v.
Edmisten, 612
F.2d 821 (1979), the Fourth Circuit upheld a similar ban in
North Carolina, relying in part on a county health department
report on the results of an inspection of several of the combined
adult bookstore-video arcades in Wake County, North Carolina.
Id., at 828-829, n. 9. The inspection revealed unsanitary
conditions and evidence of salacious activities taking place within
the video cubicles.
Ibid. The city introduces this case to
defend its breakup policy although it is not clear from the opinion
how separating these video arcades from the adult bookstores would
deter the activities that took place within them. In any event,
while
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986),
allowed a city to rely on the experiences and studies of other
cities, it did not dispense with the requirement that "whatever
evidence the city relies upon [be] reasonably believed to be
relevant to the problem that the city addresses,"
id., at
51-52, and the evidence relied upon by the Fourth Circuit is
certainly not necessarily relevant to the Los Angeles ordinance.
Since November 1977, five years before the enactment of the
ordinance at issue, Los Angeles has regulated adult video booths,
prohibiting doors, setting minimum levels of lighting, and
requiring that their interiors be fully visible from the entrance
to the premises. Los Angeles Municipal Code §§ 103.101(i), (j).
Thus, it seems less likely that the un-
462
Rather, the city apparently assumes that a bookstore selling
videos and providing viewing booths produces secondary effects of
crime, and more crime than would result from having a single store
without booths in one part of town and a video arcade in another.5
But the city neither says this in so many words nor proffers any
evidence to support even the simple proposition that an otherwise
lawfully located adult bookstore combined with video booths will
produce any criminal effects. The Los Angeles study treats such
combined stores as one, see
id., at 81-82, and draws no
general conclusion that individual stores spread apart from other
adult establishments (as under the basic Los Angeles ordinance) are
associated with any degree of criminal activity above the general
norm; nor has the city called the Court's attention to any other
empirical study, or even anecdotal police evidence, that supports
the city's assumption. In fact, if the Los Angeles study sheds any
light whatever on the city's position, it is the light of
skepticism, for we may fairly suspect that the study said nothing
about the secondary effects of freestanding stores because no
effects were observed. The reasonable supposition, then, is that
splitting some of them up will have no consequence for secondary
effects whatever.6
sanitary conditions identified in
Hart Book Stores would
exist in video arcades in Los Angeles, and the city has suggested
no evidence that they do. For that reason,
Hart Book Stores
gives no indication of a substantial governmental interest that the
ban on multiuse adult establishments would further.
5 The plurality indulges the city's assumption but goes no
further to justify it than stating what is obvious from what the
city's study says about concentrations of adult establishments (but
not isolated ones): the presence of several adult businesses in one
neighborhood draws "a greater concentration of adult consumers to
the neighborhood, [which] either attracts or generates criminal
activity."
Ante, at 436.
6 In
Renton, the Court approved a zoning ordinance "aimed
at preventing the secondary effects caused by the presence of even
one such theater
463
The inescapable point is that the city does not even claim that
the 1977 study provides any support for its assumption. We have
previously accepted studies, like the city's own study here, as
showing a causal connection between concentrations of adult
business and identified secondary effects.7 Since that is an
acceptable basis for requiring adult businesses to disperse when
they are housed in separate premises, there is certainly a relevant
argument to be made that restricting their concentration at one
spacious address should have some effect on sales and traffic, and
effects in the neighborhood. But even if that argument may justify
a ban on adult "minimalls,"
ante, at 436, it provides no
support for what the city proposes to do here. The bookstores
involved here are not concentrations of traditionally separate
adult businesses that have been studied and shown to have an
association with secondary effects, and they exemplify no new form
of concentration like a mall under one roof. They are combinations
of selling and viewing activities that have commonly been combined,
and the plurality itself recognizes,
ante, at 438, that no
study conducted by the city has reported that this type of
traditional business, any more than any other adult business, has a
correlation with secondary effects
in a given neighborhood." 475 U. S., at 50. The city, however,
does not appeal to that decision to show that combined
bookstore-arcades isolated from other adult establishments, like
the theaters in
Renton, give rise to negative secondary
effects, perhaps recognizing that such a finding would only call
into doubt the sensibility of the city's decision to proliferate
such businesses. See
ante, at 438. Although the question may
be open whether a city can rely on the experiences of other cities
when they contradict its own studies, that question is not
implicated here, as Los Angeles relies exclusively on its own
study, which is tellingly silent on the question whether isolated
adult establishments have any bearing on criminal activity.
7 As already noted, n. 1,
supra, amicus First Amendment
Lawyers Association argues that more recent studies show no such
thing, but this case involves no such challenge to the previously
accepted causal connection.
464
in the absence of concentration with other adult establishments
in the neighborhood. And even if splitting viewing booths from the
bookstores that continue to sell videos were to turn some customers
away (or send them in search of video arcades in other
neighborhoods), it is nothing but speculation to think that
marginally lower traffic to one store would have any measurable
effect on the neighborhood, let alone an effect on associated crime
that has never been shown to exist in the first place.8
Nor is the plurality's position bolstered, as it seems to think,
ante, at 439, by relying on the statement in
Renton
that courts should allow cities a "'reasonable opportunity to
experiment with solutions to admittedly serious problems,'" 475 U.
S., at 52. The plurality overlooks a key distinction between the
zoning regulations at issue in
Renton and
8JUSTICE KENNEDY would indulge the city in this speculation, so
long as it could show that the ordinance will "leav[e] the quantity
and accessibility of speech substantially intact."
Ante, at
449 (opinion concurring in judgment). But the suggestion that the
speculated consequences may justify content-correlated regulation
if speech is only slightly burdened turns intermediate scrutiny on
its head. Although the goal of intermediate scrutiny is to filter
out laws that unduly burden speech, this is achieved by examining
the asserted governmental interest, not the burden on speech, which
must simply be no greater than necessary to further that interest.
Erie, 529 U. S., at 301; see also n. 2,
supra. Nor
has JUSTICE KENNEDY even shown that this ordinance leaves speech
"substantially intact." He posits an example in which two adult
stores draw 100 customers, and each business operating separately
draws 49.
Ante, at 452. It does not follow, however, that a
combined bookstore-arcade that draws 100 customers, when split,
will yield a bookstore and arcade that together draw nearly that
many customers. Given the now double outlays required to operate
the businesses at different locations, see
infra, at 466,
the far more likely outcome is that the stand-alone video store
will go out of business. (Of course, the bookstore owner could,
consistently with the ordinance, continue to operate video booths
at no charge, but if this were always commercially feasible then
the city would face the separate problem that under no theory could
a rule simply requiring that video booths be operated for free be
said to reduce secondary effects.)
465
Young (and in Los Angeles as of 1978), and this new Los
Angeles breakup requirement. In those two cases, the
municipalities' substantial interest for purposes of intermediate
scrutiny was an interest in choosing between two strategies to deal
with crime or property value, each strategy tied to the businesses'
location, which had been shown to have a causal connection with the
secondary effects: the municipality could either concentrate
businesses for a concentrated regulatory strategy, or disperse them
in order to spread out its regulatory efforts. The limitations on
location required no further support than the factual basis tying
location to secondary effects; the zoning approved in those two
cases had no effect on the way the owners of the stores carried on
their adult businesses beyond controlling location, and no heavier
burden than the location limit was approved by this Court.
The Los Angeles ordinance, however, does impose a heavier
burden, and one lacking any demonstrable connection to the interest
in crime control. The city no longer accepts businesses as their
owners choose to conduct them within their own four walls, but bars
a video arcade in a bookstore, a combination shown by the record to
be commercially natural, if not universal. App. 47-51, 229-230,
242. Whereas
Young and
Renton gave cities the choice
between two strategies when each was causally related to the city's
interest, the plurality today gives Los Angeles a right to
"experiment" with a First Amendment restriction in response to a
problem of increased crime that the city has never even shown to be
associated with combined bookstore-arcades standing alone. But the
government's freedom of experimentation cannot displace its burden
under the intermediate scrutiny standard to show that the
restriction on speech is no greater than essential to realizing an
important objective, in this case policing crime. Since we cannot
make even a best guess that the city's breakup policy will have any
effect on crime
466
or law enforcement, we are a very far cry from any assurance
against covert content-based regulation.9
And concern with content-based regulation targeting a viewpoint
is right to the point here, as witness a fact that involves no
guesswork. If we take the city's breakup policy at its face,
enforcing it will mean that in every case two establishments will
operate instead of the traditional one. Since the city presumably
does not wish merely to multiply adult establishments, it makes
sense to ask what offsetting gain the city may obtain from its new
breakup policy. The answer may lie in the fact that two
establishments in place of one will entail two business overheads
in place of one: two monthly rents, two electricity bills, two
payrolls. Every month business will be more expensive than it used
to be, perhaps even twice as much. That sounds like a good strategy
for driving out expressive adult businesses. It sounds, in other
words, like a policy of content-based regulation.
I respectfully dissent.
9 The plurality's assumption that the city's "motive" in
applying secondary-effects zoning can be entirely compartmentalized
from the proffer of evidence required to justify the zoning scheme,
ante, at 440-441, is indulgent to an unrealistic degree, as
the record in this case shows. When the original dispersion
ordinance was enacted in 1978, the city's study showing a
correlation between concentrations of adult business and higher
crime rates showed that the dispersal of adult businesses was
causally related to the city's law enforcement interest, and that
in turn was a fair indication that the city's concern was with the
secondary effect of higher crime rates. When, however, the city
takes the further step of breaking up businesses with no showing
that a traditionally combined business has any association with a
higher crime rate that could be affected by the breakup, there is
no indication that the breakup policy addresses a secondary effect,
but there is reason to doubt that secondary effects are the city's
concern. The plurality seems to ask us to shut our eyes to the
city's failings by emphasizing that this case is merely at the
stage of summary judgment,
ante, at 439, but ignores the
fact that at this summary judgment stage the city has made it plain
that it relies on no evidence beyond the 1977 study, which provides
no support for the city's action.
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