Viewpoint Neutral Zoning of Adult Entertainment Businesses

Abstract

Zoning of strip clubs, adult video stores, and other adult entertainment businesses is a frequent source of controversy and litigation in many American cities. Community members often oppose strip clubs moving into their city and many cities try to keep these businesses as far from public life as possible. The Supreme Court's First Amendment law has not helped this struggle. In fact, the current “secondary effects” test used by the Supreme Court has actually made it more difficult for cities to zone adult businesses. Although a few commentators have expressed their disapproval of the secondary effects test, they have all complained that the test allows cities too much power or erodes constitutional freedoms. Surprisingly, no commentator has ever argued that the test actually does not defer enough to cities. This Article argues that the secondary effects test weakens the state zoning power and imposes an impossible task on cities in forcing them to ensure the economic success of adult businesses. After exploring the main flaws of the secondary effects test as demonstrated by lower court decisions following the Supreme Court's latest zoning decision in Alameda Books, this Article demonstrates how the Court can adopt a new “viewpoint neutral” approach that allows cities to protect adult entertainment expression while maintaining broad discretion under their zoning power.

Keywords: First Amendment, speech, zoning, secondary effects, adult entertainment