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Adult Use Amendments Held Unconstitutional
Ten's Cabaret, Inc. v. City of New York, decided last month (NYLJ 9/16/03, p. 18, col. 1), represents the latest skirmish in the long-term battle between the City of New York and owners of adult establishments over the city's efforts to regulate the location (and ultimately the number) of adult uses in the city. In Ten's Cabaret, Justice York of New York County Supreme Court held that the city's 2001 amendment to its zoning resolution — enacted to counteract evasion of the provisions in the then-existing ordinance — failed to pass constitutional muster because the city had not conducted any studies to demonstrate the need for the amendment.
In City of Renton v. Playtime Theatres, 475 US 41 (1986), the United States Supreme Court developed the constitutional framework for the regulation of adult uses. The City of Renton had banned adult motion picture theaters from locating within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. When purchasers of two theaters sought to show adult movies, they brought an action challenging the city's ordinance as an unconstitutional restriction of speech. In upholding the ordinance, the Supreme Court started by noting that regulations aimed at regulating the content of speech are presumptively unconstitutional. If, however, a regulation is justified without regard to the content of the speech, then the regulation is content-neutral, and the presumption of unconstitutionality does not obtain. The Court emphasized that the city was entitled to regulate adult motion pictures in order to combat the negative “secondary effects” that accompany such theaters — crime, neighborhood blight, etc. And the Court held that the city did not have to conduct studies of the impact of adult theaters in Renton itself; experiences in other cities would suffice. 475 US at 51-52.
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