Posted by: Patricia Salkin | November 14, 2012

New Mexico Appeals Court Holds One-Time Screening of Adult Film Could Be Prosecuted Under City Zoning Ordinance Barring Adult Entertainment Establishments

In November 2008, the Guild Cinema hosted its second annual “Porntopia” festival, screening a number of erotic films.  Aside from this annual film festival, the Guild Cinema normally operated a mainstream movie theater located in a City of Albuquerque not zoned for adult entertainment establishments.  City officers attended two of the Guild’s Porntopia film screenings, and identified one film as meeting the definition of an adult film under provisions in the City Zoning Code on adult entertainment establishments.  The City filed criminal charges against the Guild Theater and alleged that the cinema was operating an adult entertainment establishment in a zone where such businesses were not permitted.  The Guild Theater was convicted and appealed to the district court, which upheld the conviction and fined the theater $500.  The Guild appealed.

On appeal, the Guild Theater argued that its one-time screening of an adult film did not render its mainstream theater an adult entertainment establishment, and that the City ordinance should be more narrowly construed such that it did not apply to the Guild’s showing of a single adult film.  While the dissent agreed with the Guild’s argument, the New Mexico Court of Appeals declined to read the Albuquerque ordinance to exclude single screenings of adult films from the definition of an adult entertainment establishment.

The ordinance classified an establishment “featuring . . . films or motion pictures . . . distinguished by an emphasis on the depiction, description, exposure, or representation of specified anatomical areas or the conduct or simulation of specified sexual activities,” as well as those were a “live performance, act or escort service” of a similar nature was made, as an adult entertainment establishment.  The Guild argued that the use of the word “featuring” indicated that the City was referring to establishments which regularly featured adult films as part of their usual business.  The Guild also argued that the City’s use of singular language in including establishments which offer a “live performance,” yet the use of plural language in including establishments which feature “films,” indicated that the City intended adult entertainment establishments to encompass those theaters screening multiple adult films which, cumulatively, could produce negative secondary impacts on the surrounding community.  The court rejected both of these arguments, holding that a single screening of a film could reasonably be interpreted as a theater “featuring” an adult film, and that the ordinance drew no real distinction between a “live performance” and “films” sufficient to support the claim that a theater was not an adult entertainment establishment until it screened more than one adult film.  The City’s interpretation of its own ordinance as drawing the Guild’s one-time adult film screening into its purview was upheld by the court.

Guild Theater also argued that the ordinance was unconstitutionally vague because it failed to give notice to mainstream theaters that a single adult film screening could render them subject to prosecution under the City’s adult entertainment regulations.  However, the court held that the City’s ordinance was not unconstitutionally vague because it gave theater proprietors of ordinary intelligence a reasonable opportunity to know that a single adult film screening was a violation of City law, since the Guild had acknowledged that it knew the film in question was an adult film and did not dispute the adult nature of the film.  Such knowledge was determined to be enough to put the Guild on notice that its screening of the film was in violation of the City’s adult entertainment establishment regulations.  Further, the court held that the City ordinance provided explicit standards which City officials could use to enforce the Ordinance, since the Guild offered no evidence that it had been the victim of selective enforcement of the law or that the City had failed to take steps to adequately train and inform its officials in the application of this law.  Given that the City Ordinance contained a list of “specified anatomical areas” and “specified sexual activities” considered by the City of be adult in nature, the court felt that City officials had sufficient guidance in application and enforcement of the law.

Finally, the court held that the City ordinance was a permissible time, place, and manner restrictions on speech, and not an unlawful restriction on the Guild’s freedom of speech rights under the New Mexico and United States Constitutions.  The Guild urged that the New Mexico Constitution provided greater protection to its free speech rights above and beyond the rights protected by the U.S. Constitution.  However, the court asserted that it subscribes to an interstitial approach to interpreting its state constitution, diverging from federal constitutional analysis only where it finds “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics” in the case.  Finding none of these, the court opted to proceed only under a federal First Amendment analysis.

In its First Amendment analysis, the court found that the City ordinance was a proper time, place, and manner restriction on speech, in this case the screening of adult films, because it did not put a complete ban on such speech, but merely relegated that speech to certain zones within the City which accounted for about five percent of the City’s available property, an amount the court found adequate for adult entertainment uses.

On the question of whether to apply strict or intermediate scrutiny to the application of this Ordinance to the Guild’s screening of a single adult film, the Guild argued that the City was targeting the content of its speech, since there would not likely be the kind of significant secondary negative effects about which Cities are permitted to concern themselves when crafting content-neutral speech restrictions.  However, the court declined to apply the strict scrutiny standard normally used in content-based regulation cases, because it rejected the notion that the City ordinance was in fact based on the content of the film.  Rather, the court pointed out that its inquiry concerned whether the enactment of the City ordinance was a content-based or content-neutral restriction on speech, not whether the enforcement of the ordinance in the Guild’s case was content-based or content-neutral.  Since the purpose of the City ordinance was in fact to limit the negative secondary effects commonly associated with adult entertainment establishments, the court held that the ordinance itself was content-neutral and that the intermediate scrutiny test applied.

In applying intermediate scrutiny, the court held that the ordinance neither targeted the content of the expression nor enacted a total ban on adult establishments.  The court found that the ordinance was in fact content neutral, that it was narrowly tailored to serve the significant interest the City had in combating the negative secondary effects of adult establishments, and that it provided reasonable alternative venues in which adult establishments could locate and engage in adult speech.  Therefore, the ordinance was a permissible time, place, and manner restriction.

For those reasons, the majority affirmed the conviction issued by the district court.

A lengthy dissent in this case rejected the application of the adult entertainment ordinance to the Guild, since a mainstream theater screening a single adult film could not reasonably be considered alongside establishments whose principal business is in adult entertainment.  The dissent also disputed the notion that the ordinance was narrowly tailored, pointing out that the City had effectively rewritten its ordinances on retail establishments selling adult material such that they only applied to establishments with more than 25 percent of their retail space dedicated to the sale of such material.  Arguably, the City could have crafted a similarly narrow ordinance which would apply to establishments screening adult films, but failed or refused to do so.  For that reason, the dissent would have overturned the conviction and deemed the ordinance unconstitutional.

City of Albuquerque v. Pangaea Cinema, LLC, 2012 WL 3643045 (NM Ct. Appls. May 29, 2012)

The opinion can be accessed at:

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