In 2002, the Supreme Court issued its opinion in Los Angeles v. Alameda Books, 535 U.S. 425 (2002) as the most recent hight court pronouncement on the adverse secondary effects doctrine. This week, a California federal court granted an adult bookstore summary judgment in the remanded case, and in the process gave a clear articulation of the often befuddling standard revealed by the 2002 Supreme Court ruling.
Perhaps foreshadowing Justice Kennedy’s rise to his position as the important Supreme Court swing vote, Kennedy issued a concurrence in Los Angeles v. Alameda Books, which has come to rest as the controlling opinion since he concurred in the judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 (1976).
The Central District of California decision, while not binding on any other court, is the best place to begin any research on the adverse secondary effects doctrine. This case contains the clearest and most recent synopsis of Kennedy’s Alameda Books concurrence, and serves as an excellent cliffs notes version of Los Angeles v. Alameda Books. The trial court summarizes that, unlike the plurality led by Justice O’Connor, “Justice Kennedy emphasized that courts must also consider whether the municipality has advanced a legitimate proposition justifying the ordinance.” Kennedy’s opinion expanded the Renton v. Playtime Theaters standard and placed a greater burden upon municipalities seeking to regulate adult entertainment establishments:
[A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quality and accessibility of speech substantially intact.” Los Angeles v. Alameda Books, 535 U.S. at 449.
The C.D. Calif. recognized that while municipalities may combat adverse secondary effects, it may not do so simply by wiping out speech in order to do so.
[t]he rationale of the ordinance must be that it will suppress secondary effects – and not by suppressing speech.” Id. at 449-50. Justice Kennedy added this requirement to the Renton structure because the plurality’s approach failed to address “how speech will fare under the city’s ordinance.” Id. at 450. Whereas the plurality considered only the narrow question of whether the evidence relied upon by the City reasonably justified the design of the ordinance, Justice Kennedy perceived that [t]his 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? (source at 12)
The C.D. Calif notes that the Los Angeles v. Alameda Books plurality merely skipped to the second question, but did not give adequate attention to the controlling first factor.
Justice Kennedy reasoned that the rationale of a secondary-effects ordinance must be that it will reduce the externality costs associated with the speech activity “without substantially reducing speech” because “[i]t 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.” Id. at 450.
Most municipalities that try to regulate these businesses start with the proposition that they just don’t want them in their communities, and then work backwards trying to apply the adverse secondary effects doctrine. As a result, they are willing to use all kinds of junk science to back up their ordinances — something that even the plurality in Alameda Books would not permit. However, the Central District of California gives us a good outline of Kennedy’s concurrence that shows us that a primarily censorial purpose or effect will not be a permissible tool in the fight against secondary effects.
Any litigant or court (or student taking my final next week) seeking to apply Los Angeles v. Alameda Books should first take a look at this opinion, as it appears that the Central District of California used its vantage point as the court most familiar with the Alameda Books case to give the clearest and most accurate articulation of the often-befuddling 2002 Supreme Court opinion.