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Ever since City of Renton v. Playtime Theaters, the U.S. Supreme Court has allowed cities to zone out of existence businesses it didn't like, as long as the city was nominally zoning based on "secondary effects" and not targeting a particular kind of expression. In Renton, it was -- and this gives you an idea how old the case is -- an "adult" theater.
From the First Circuit, Showtime Entertainment v. Town of Mendon takes us back to that old "secondary effects" doctrine and just how far it can go.
We Just Wanted to Build a Strip Club!
Mendon, Massachusetts "has set forth a veritable maze of zoning restrictions" designed, essentially, to make it difficult-bordering-on-impossible to get an adult entertainment business established in town. The zoning restrictions apply only to adult businesses and restrict building size, operating hours, and the ability to sell alcohol (which is none).
After Showtime applied for a license to build an 8,935-square-foot strip club, and after the city denied the license, Mendon amended its bylaws to limit adult entertainment buildings' area to 2,000 square feet, height to 14 feet, and prohibited adult entertainment businesses from selling alcohol. Showtime then reapplied for a license, which it was granted; it sued nonetheless, claiming the building size restrictions and alcohol prohibition violated its First Amendment rights and the Massachusetts constitution.
These Aren't Secondary Effects at All
In addition to arguing over whether this was a facial or as-applied challenge (which the First Circuit said was largely irrelevant in this case), the court had to grapple with the level of scrutiny: intermediate or strict? Content-based restrictions merit strict scrutiny, while content-neutral restrictions on mixed speech and conduct get intermediate scrutiny.
Again, it's irrelevant, as the First Circuit said that the city's regulations fail even intermediate scrutiny. Taking Mendon at its word that the purpose of the regulations were to "maintain the rural aesthetics of Mendon as a small town" and "avoid traffic congestion," the court concluded that the regulation was fatally underinclusive. The area in which Showtime would construct its building already housed a 6,900-square-foot storage facility, a 700-car drive-in movie theater, and a 10,000-square-foot nightclub. It was thus clear to the court that the size of the building wasn't the problem. (Notably, at oral argument, counsel for Mendon admitted as much. Whoops!)
The court also found Mendon's concerns about traffic unavailing, as other large commercial buildings in the same area didn't raise the same traffic concerns. As the court noted, if your argument about secondary effects requires making reference to the stuff that goes on inside the building, then you're not really talking about the secondary effects, are you?
As to whether the prohibition on alcohol sales violates the state constitution, the court decided to certify that question to the Massachusetts Supreme Judicial Court. State case law suggests that prohibiting alcohol consumption in an adult business is no different from prohibiting adult activity in an alcohol-serving establishment, but the First Circuit just wanted to be sure, as this could be a case of first impression.
On the federal constitutional question, the city clearly lost. We'll have to wait to see if Mendon also violated the state constitution by prohibiting alcohol sales in a very narrow category of businesses.