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CITY OF LOS ANGELES, PETITIONER v.
ALAMEDA BOOKS, INC., et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 13, 2002]
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 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 9, 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. 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 Serv. 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 (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 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, content-based 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.
In examining 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 market 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, 427 U.S., 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 content-correlated 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, increase 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, supra, 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 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 8. That may or 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
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
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, traffic, and effects in the neighborhood. But even if that argument may justify a ban on adult “minimalls,” ante, at 8, 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 10, 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 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 11, by relying on the statement in Renton, that courts should allow cities a “
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 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.
Notes
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.
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, 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).
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 Serv. 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.
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 unsanitary 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 8.
6. In Renton, the Court approved a zoning ordinance “aimed at preventing the secondary effects caused by the presence of even one such theater 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 10. 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.
8. Justice 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 7 (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. Pap’s A. M., 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 9. 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 15, 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.)
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 13, 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 11, 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.