The Supreme Court's recent decision allowing communities to ban nude dancing is good news for cities attempting to control a range of sexually related quality-of-life blights.
For 20 years, judges—seemingly attempting to reconcile their common sense with their desire not to appear "unenlightened"—have turned the law regarding regulation of adult material in public places into a convoluted, contradictory mess. Justice Sandra Day O'Connor's opinion upholding Erie, Pennsylvania's G-string and pastie requirements for live dance performances may signal an end to the confusion—and a more sympathetic attitude toward community concerns.
Most notably, O'Connor lays to rest the mistaken presumption—uncritically accepted by many judges, lawyers, and policymakers—that pornography is entitled to the same constitutional protection as political speech. This was of course never the founders' understanding of the First Amendment (see "Free to Strip?" Spring 1999). And, as O'Connor reaffirms more forcefully than the Court has for 24 years, it is still not the law today. The law, she notes, was "eloquently" stated by Justice John Paul Stevens in 1976 when the Court upheld Detroit's adult theater zoning restrictions: "[E]ven though . . . the First Amendment will not tolerate the total suppression of erotic materials . . . society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate."
Neither the Supreme Court nor any federal appellate court had ever rejected that holding. Yet sophisticated members of the bar seem to have come to regard it as an embarrassment. (Stevens himself, now probably the Court's most liberal justice, dissented from O'Connor's nude-dancing ruling.) New York City lawyers didn't cite it in their briefs defending the Giuliani administration's porn zoning rules. And many court decisions concerning regulation of smut simply do not mention it.
Many of these courts nonetheless approved various restrictions on sex shops based on their "negative secondary effects" (such as increased prostitution) on the surrounding community. But sex shops degrade the quality of life of their neighborhoods by their very existence, regardless of whether they also attract these additional evils. Unwilling to appear illiberal by acknowledging this reality, courts have stretched the concept of "secondary effects" further and further. As one court candidly admitted, they have readily accepted little more than anecdotes as proof of "secondary effects."
Now O'Connor, writing for four members of the Court, has essentially abandoned the need even for anecdotes as proof. Cities attempting to regulate any type of sexual business can now simply rely on the evidence of negative secondary effects of adult theaters accepted by the Court in the Detroit case in 1976 and a similar 1986 case from Washington State, she holds. That is, courts will assume that sleaze has secondary effects rather than putting the onus on communities to demonstrate them, though to zone out the sleaze, municipalities will still have to use the language of secondary effects as a fig leaf. Justices Scalia and Thomas, in a concurring opinion, would go even further—allowing regulation based on "the traditional power of government to foster good morals."
The first test of the reach of the Court's new ruling may well come in one of the disputes now cropping up around the country regarding access to Internet pornography at public libraries. Porn accounts for roughly two-thirds of the Western market for online content. This widespread presence of smut on the Net creates a problem for libraries that want to offer Internet access to the public while providing an appropriate environment for kids.
The use of filtering software to screen out sexually explicit material presents an obvious solution to this problem. And notwithstanding ACLU horror stories about filters blocking information about breast cancer or the Mars ex pedition, current filtering technology is more sophisticated than this—based on complex algorithms that take account of the context in which words appear.
The one federal court to consider the issue accepted the ACLU's argument that the use of filtering software by public libraries violates the First Amendment. But it is doubtful that this decision can survive Justice O'Connor's revival of the constitutional understanding that had always relegated porn to the periphery of First Amendment protection. As O'Connor writes, quoting again from Stevens's long-ignored 1976 opinion: "[F]ew of us would march our sons and daughters off to war to preserve the citizen's right to see" sexual activity and genitalia at theaters and dance clubs. Or at the local library.