The town of Medway, Mass. is considering expanding the size, but changing the location, of its adult entertainment zoning district. At this time, the only place in Medway where adult entertainment businesses can locate is “a small trapezoidal block on Rte. 109, east of Pond Street.” (source)
Resident Mark Cerel, a municipal lawyer and the town moderator, said he is concerned the allowable area is so small – only a couple of properties – that the courts could find it unfairly limiting, and then permit adult entertainment to locate in any retail spot in town. (source)
Mr. Cerel is correct. While there is no set formula for how much area in a municipality must be available for adult entertainment uses, courts have held that there must be enough so that free speech does not suffer as a result of otherwise-permissible zoning restrictions. Municipalities may not ban adult entertainment outright, but may restrict the time, place, and manner in which adult entertainment establishments operate if they do so on order to combat “adverse secondary effects.” However, municipalities may not combat these effects by simply banning adult speech from the entire community.
[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? See Alameda Books v. City of Los Angeles,
Case No. CV 95-07771 DDP (C.D. Calif 2008) at 12 (citing and clarifying City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002))
In City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), Justice Kennedy’s controlling opinion reasoned that any ordinance to regulate adverse secondary effects must reduce the effects “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.
The Town of Medway seems to be getting some good advice. If it fails to heed that advice, it may find that its entire adult entertainment zoning scheme is constitutionally invalidated — thus turning Medway into one town where adult entertainment may locate virtually anywhere. Of course, this is not necessarily a bad thing. Adult entertainment has evolved greatly since the 1970s, and the “adverse secondary effects” of these kinds of businesses are largely non-existent, or are less than the secondary effects of other more traditional businesses. Nevertheless, the political implications for the existing town council would be palpable.