Editor’s Note: This blog post by Brian Connolly, Esq. originally appeared on the Rocky Mountain Sign Law Blog here: http://www.rockymountainsignlaw.com/2017/03/secondary-effects-doctrine-lives-fourth-circuit-decision/
In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine. That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.
In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store. That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses. The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down. Taboo was located in one of the restricted areas, and continued to operate for the amortization period. At the end of the amortization period, Taboo sued the city under the First Amendment.
The district court entered summary judgment in favor of the city. On appeal, the Fourth Circuit agreed with the district court’s analysis and applied the three part standard from City of Los Angeles v. Alameda Books, finding that the regulation did not completely ban adult businesses, was aimed at the secondary effects of adult businesses, and served the city’s substantial interest in ameliorating such secondary effects.
The Fourth Circuit’s analysis is interesting in three ways. First, the decision does not discuss or even cite Reed v. Town of Gilbert, which the Third Circuit Court of Appeals applied in a widely-panned decision last year reversing elements of the secondary effects doctrine. Thus, the Fourth Circuit appears to have followed the Seventh Circuit’s view that Reed has not impliedly reversed Alameda Books or its predecessor cases. Second, the court did not give much credence to Taboo’s argument that, because the ordinance was passed shortly after it opened for business and was clearly in response to Taboo, the ordinance was inherently content based and targeted Taboo. The court relied on precedent to hold that “[t]he mere fact that an adult business has prompted a regulation” does not necessitate the conclusion that the regulation is content based. Third and finally, the Fourth Circuit appeared to follow City of Renton v. Playtime Theatres in holding that the city was not required to make a showing of secondary effects experienced in its neighborhoods; data and experience from other jurisdictions was sufficient to substantiate the city’s interests in the regulation. This conclusion appears to depart from the Supreme Court’s later decision in McCullen v. Coakley, which several courts have relied on to impart a higher evidentiary burden on local governments enacting regulations of speech.