Why We Protect Porn & The Alameda Books Case

I was amused a while back on 11-30-06 when NPN posted its missive, “US Supreme Court Sets Reasonable Guidelines for Adult-Use Zoning in City of Los Angeles v. Alameda Books (2002).” While no justice would say they were retreating from the leading City of Renton opinion, Alameda Books has proven to be the beginning of the end of the Renton opinion in many of the federal circuit of appeals courts, as explained below.

First, to NPN’s credit, NPN did not edit out the most important part of the Supreme Court’s majority opinion in the Alameda case which modified and eroded, in effect, the controlling Renton opinion. Now a city enjoys merely a rebuttable presumption of reasonableness in passing a no porn zoning law; the aggrieved retailer of sexual content can now come forward with evidence rebutting a city's presumptions about secondary effects and prevail. As its states:

"This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by 'demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton."

I cited a few of the cases where the plaintiff has in fact succeeded pursuant to the Alameda decision in my blog at http://talkbacknorthampton.blogspot.com/2006/10/constitutional-zoning-law-secondary.html.

Second, nonetheless, I think the majority opinion is Alameda was wrong to equate the private display and sale of sexually explicit expression with captive audience billboards and non-speech industrial factory activity, without requiring more from a city to justify a prior restraint upon, that is banishment of, constitutionally protected expression.

After all, should not our constitutional rights enshrined in the Bill of Rights be treated as more important than rights that are not? To be sure, the private consumption of sexually explicit expression is far less important to many, if not most, of the public than other rights which do not enjoy constitutional protection. Typically, sexually explicit materials express and celebrate points of view about what are acceptable manners to behave that are very contrary to the values and morals upon which our Judeo-Christian society rests. And in graphic form its very powerful expression. After all, "a picture is worth a thousand words." This powerful combination is therefore very threatening. But so are many other points of view, such as those shared by Islamic fundamentalists.

Third, the majority opinion in Alameda soft peddles the issue of whether or not sexually explicit material can be made and will be still readily accessible to the public in preferred forms. If the internet was an entirely satisfactory means of communicating all of the serious and not so serious intellectual material the public desires to offer and consume, then no commercially viable video and bookstores would remain downtown. But, in fact, people want and, to a significant extent, still need, the brick and motor, hard copy experience for the enjoyment of non-sexual as well as sexually explicit material. And the retailers, themselves, will testify as to how important location is; it’s critical.

So, in sum, where no captive audiences are involved, the Alameda court should have applied a strict scrutiny standard applicable to political speech, instead of the intermediate standard, in my opinion. Would it be more burdensome for cities? Sure, but not everything a city planner needs to be concerned about is enshrined in the constitution.