City of Renton v. Playtime Theatres, Inc.

Blackmun Concurrance in result

• Justice Blackmun concurs in the result.

Brennan Dissent (Marshall)

• Part I
• "[A] constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech." Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530, 447 U. S. 536 (1980).
• The fact that adult movie theaters may cause harmful "secondary" land use effects may arguably give Renton a compelling reason to regulate such establishments; it does not mean, however, that such regulations are content-neutral.
• "[B]efore deferring to [Renton's] judgment, [we] must be convinced that the city is seriously and comprehensively addressing" secondary land use effects associated with adult movie theaters. Metromedia, Inc. v. San Diego, 453 U. S. 490, 453 U. S. 531 (1981) (Brennan, concurring in judgment).
• Part I A
• The Court ignores this discriminatory treatment, declaring that Renton is free "to address the potential problems created by one particular kind of adult business," and to amend the ordinance in the future to include other adult enterprises.
• However, because of the First Amendment interests at stake here, this one-step-at-a-time analysis is wholly inappropriate.
• In this case, the city has not justified treating adult movie theaters differently from other adult entertainment businesses. The ordinance's underinclusiveness is cogent evidence that it was aimed at the content of the films shown in adult movie theaters.
• Part I B
• Shortly after this lawsuit commenced, the Renton City Council amended the ordinance, adding a provision explaining that its intention in adopting the ordinance had been "to promote the City of Renton's great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of urban life through effective land use planning."
• Prior to the amendment, there was no indication that the ordinance was designed to address any "secondary effects" a single adult theater might create.
• That some residents may be offended by the content of the films shown at adult movie theaters cannot form the basis for state regulation of speech. See Terminiello v. Chicago, 337 U. S. 1 (1949).
• In sum, the circumstances here strongly suggest that the ordinance was designed to suppress expression, even that constitutionally protected, and thus was not to be analyzed as a content-neutral time, place, and manner restriction. [compare city council's intent to that of the city council in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) ]
• Rather than speculate about Renton's motives for adopting such measures, our cases require the conclusion that the ordinance, like any other content-based restriction on speech, is constitutional "only if the [city] can show that [it] is a precisely drawn means of serving a compelling [governmental] interest." Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. at 447 U. S. 540; see also Carey v. Brown, 447 U. S. 455, 447 U. S. 461-462 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 99 (1972).
• Applying this standard to the facts of this case, the ordinance is patently unconstitutional. Renton has not shown that locating adult movie theaters in proximity to its churches, schools, parks, and residences will necessarily result in undesirable "secondary effects," or that these problems could not be effectively addressed by less intrusive restrictions.
• Part II
• Even assuming that the ordinance should be treated like a content-neutral time, place, and manner restriction, I would still find it unconstitutional.
• Part II A
• The city made no showing as to how uses "protected" by the ordinance would be affected by the presence of an adult movie theater.
• Here, the Renton Council was aware only that some residents had complained about adult movie theaters, and that other localities had adopted special zoning restrictions for such establishments. These are not "facts" sufficient to justify the burdens the ordinance imposed upon constitutionally protected expression.
• Part II B
• Finally, the ordinance is invalid because it does not provide for reasonable alternative avenues of communication.

Full Recounting of Facts

• In May 1980, the Mayor of Renton, a city of approximately 32,000 people located just south of Seattle, suggested to the Renton City Council that it consider the advisability of enacting zoning legislation dealing with adult entertainment uses. No such uses existed in the city at that time.
• In April, 1981, ... the City Council enacted Ordinance No. 3626. The ordinance prohibited any "adult motion picture theater" from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school.
• In early 1982, respondents acquired two existing theaters in downtown Renton, with the intention of using them to exhibit feature-length adult films.
• The theaters were located within the area proscribed by Ordinance No. 3526.
• A list of the material facts is available above

Rehnquist Majority Full Argument (Burger, White, Powell, Stevens, O'Connor)

• See Material Facts
• See Procedural History
• The Renton ordinance, ... , does not ban adult theaters altogether ....
• The ordinance is therefore properly analyzed as a form of time, place, and manner regulation. American Mini Theatres 63, and n. 18; 78-79 (Powell concurring).
• This Court has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment.
• On the other hand, so-called "content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 468 U. S. 293 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 807 (1984); Need entry for Heffron-KrishaConsciousness 640, 647-648.
• Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at "adult motion picture theatres," but rather at the secondary effects of such theaters on the surrounding community.
• According to the Court of Appeals, if "a motivating factor" in enacting the ordinance was to restrict respondents' exercise of First Amendment rights, the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council's decision.
• This view of the law was rejected in United States v. O'Brien, 391 U.S. 367 (1968) , 382-386 ... "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive...." ... "What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork." [Goodbye, Intent Originalism]
• The District Court's finding as to "predominate" intent, left undisturbed by the Court of Appeals, is more than adequate to establish that the city's pursuit of its zoning interests here was unrelated to the suppression of free expression. [Due to the "statement of reasons" added to the statute? See Full Recounting of Facts]
• In short, the Renton ordinance is completely consistent with our definition of "content-neutral" speech regulations as those that "are justified without reference to the content of the regulated speech."
• ... in American Mini Theatres, a majority of this Court decided that, at least with respect to businesses that purvey sexually explicit materials, [Footnote 2] zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to "content-neutral" time, place, and manner regulations.
• We have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings.
• The Court of Appeals ruled, however, that, because the Renton ordinance was enacted without the benefit of studies specifically relating to "the particular problems or needs of Renton," the city's justifications for the ordinance were "conclusory and speculative."
• We think the Court of Appeals imposed on the city an unnecessarily rigid burden of proof.
• Cities may regulate adult theaters by dispersing them, as in Detroit [American Mini Theatres], or by effectively concentrating them, as in Renton.
• Moreover, the Renton ordinance is "narrowly tailored" to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad v. Mount Ephraim, 452 U. S. 61 (1981), and Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975).
• That Renton chose first to address the potential problems created by one particular kind of adult business in no way suggests that the city has "singled out" adult theaters for discriminatory treatment. [chose first to address ... one particular kind ... in no way suggests ... "singled out".]
• Finally, turning to the question whether the Renton ordinance allows for reasonable alternative avenues of communication, we note that the ordinance leaves some 520 acres, or more than five percent of the entire land area of Renton, open to use as adult theater sites.
• Respondents argue, however, that some of the land in question is already occupied by existing businesses, that "practically none" of the undeveloped land is currently for sale or lease, and that, in general, there are no "commercially viable" adult theater sites within the 520 acres left open by the Renton ordinance.
• The Court of Appeals accepted these arguments, [Footnote 3] concluded that the 520 acres was not truly "available" land, and therefore held that the Renton ordinance "would result in a substantial restriction" on speech.
• We disagree with both the reasoning and the conclusion of the Court of Appeals. That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.
• In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement. [ lack of "commercially viable" sites does not effectively deny respondents a reasonable opportunity]
• The judgment of the Court of Appeals is therefore Reversed.
• The core of the rationale is available above