The First Amendment demands that government officials generally should not discriminate against speech based on content or viewpoint. Under free speech jurisprudence, content-based laws are viewed with greater suspicion than content-neutral laws. The fear is that government officials may censor speech because they dislike the message.
The designation of a law as content-based or content-neutral can determine a law’s constitutionality. Content-based laws are evaluated under strict scrutiny, while content-neutral laws are evaluated under the more relaxed intermediate scrutiny.
The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values.
The doctrine arose in the 1970s as government officials grappled with a proliferation of adult bookstore and theater businesses in cities and towns. Fearing the creation of red-light districts, government officials sought to combat the spread of these businesses with a cadre of zoning and licensing restrictions.
The problem, as First Amendment scholars Jerome Barron and C. Thomas Dienes have observed is that the doctrine is “susceptible to manipulation. A court that wishes to escape the consequences of a content-based regulation can simply categorize it as an indirect burden on speech involving ‘secondary effects.’” Thus, the doctrine has proven to be fertile ground for abuse, empowering government officials to act on their thinly disguised dislike for adult entertainment that otherwise would be entitled to First Amendment protection (provided it was adjudged to be legally obscene). However, the doctrine has spread from the regulation of adult businesses to all varieties of speech. For example, it has been used to uphold a student dress code, regulation of signs in historic districts, and restrictions on solicitation.
Origins of the Doctrine
The secondary effects doctrine arose in the context of challenges to laws regulating the location of adult businesses. The Supreme Court first used the doctrine in Young v. American Mini Theatres, Inc. (1976), a 5–4 ruling. The majority upheld a provision of Detroit’s “Anti-Skid Row Ordinance” limiting adult businesses from being within 1,000 feet of any two existing adult businesses or within 500 feet of any residential area.
The theater that challenged the law contended that the zoning ordinance was content-based, because it targeted businesses with adult-oriented expression. However, the Court reasoned that the law was not passed to silence offensive expression but to prevent the deterioration of neighborhoods. In a footnote, Justice John Paul Stevens’s majority opinion characterized such neighborhood deterioration as a “secondary effect.” He wrote:
The Common Council’s determination was that a concentration of adult movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of “offensive speech.”
Writing in dissent, Justice Potter Stewart criticized the majority’s contortion of the content discrimination principle, writing that the Court’s decision ran “roughshod over cardinal principles of First Amendment law.”
Ten years later, the secondary effects doctrine emerged from a footnote to the principle rationale for upholding another zoning law on adult businesses in Renton v. Playtime Theatres, Inc. (1986). The city of Renton, Washington, a small town near Seattle, passed a zoning law preventing adult businesses from locating within 1,000 feet of any residential area, school, park or church.
City leaders enacted the law without conducting any research to determine the alleged harmful impact of adult businesses. Instead, Renton leaders relied on the experience of other cities, including Seattle. By a 7–2 margin, the Burger Court upheld the zoning law based on the secondary effects doctrine.
The majority in Renton also determined that a city does not have to conduct its own study to justify its reliance on the secondary effects argument, stating:
The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.
Extending the Doctrine Beyond Locational Restrictions
After Young and Renton, cities passed numerous zoning laws regulating the location of adult businesses. Cities also enacted further restrictions regulating nude dancing.
The Supreme Court extended the secondary effects doctrine beyond regulating land use to censoring the content of expression in Barnes v. Glen Theatre, Inc. (1991). By a one-vote margin, the Rehnquist Court narrowly upheld a requirement that exotic dancers wear a modicum of clothing (G-strings and pasties) rather than dance totally nude. In his concurring opinion, Justice David Souter reasoned that the public nudity law was not designed to suppress expression but to combat harmful secondary effects.
Nearly a decade later, the court revisited Barnes’ expansion of the doctrine to uphold public nudity laws in City of Erie v. Pap’s A.M. (2000). The Court explained that the city of “Erie’s asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing.”
The Court again addressed the secondary effects doctrine in a challenge to a ban on multiple use adult businesses in City of Los Angeles v. Alameda Books (2002), another 5–4 ruling. The case involved a Los Angeles ordinance prohibiting a single adult establishment from functioning as both an adult bookstore and an adult arcade showing adult films.
Justice Sandra Day O’Connor’s plurality determined that “it is rational for the city to infer that reducing the concentration of adult businesses in a neighborhood, whether within separate establishments or in one large establishment, will reduce crimes.”
However, the Court did explain that city officials must not use “shoddy data or reasoning” and must provide some evidence of secondary effects.
State of the Doctrine
The secondary effects doctrine remains the key doctrinal tool in adult expression cases. Lower courts often ask the following three questions:
- Is the law a complete ban on expression or a time, place, and manner restriction on speech?
- Is the city’s purpose to prevent harmful secondary effects?
- If yes, does the law serve a substantial governmental interest and leave reasonable alternative avenues of expression?
Many courts show deference to city officials, accepting a wide range of evidence of secondary effects. However, a few courts have emphasized that government officials must produce some evidence of secondary effects. Particularly in DiMa Corp. v. Town of Hallie (7th Cir. 1999), the court questioned whether government officials could restrict so-called off-site adult businesses (businesses that sell adult-oriented expression) as opposed to adult businesses that offer live performance dancing.
As I explained in “The Secondary Effects Doctrine: Stripping Away First Amendment Freedoms” for the Stanford Law & Policy Review (2012):
What continues is a disturbing pattern of assuming that adult businesses cause secondary effects, upholding patent attempts to shut down or prevent an adult business from even opening, and other draconian restrictions.
Perhaps even more troubling, the secondary effects doctrine has the potential to restrict almost any type of expression. Government officials often can come up with rationales for restricting speech that are considered a secondary effect. Common examples include increased criminal activity, decreased privacy, visual clutter, noise, security problems, and traffic congestion.
Justice William Brennan was prescient in his 1988 concurrence in Boos v. Barry when he warned that the secondary effects doctrine could lead to an “evisceration of First Amendment freedoms.”
Barron, Jerome, and C. Thomas Dienes. First Amendment Law in a Nutshell. St. Paul, MN: Thompson/West (2008).
Cramer, Britt. “Zoning Adult Businesses: Evaluating the Secondary Effects Doctrine.” Harvard John M. Olin Fellow’s Discussion Paper (2013).
Hudson, David. “Adult Entertainment and the Secondary Effects Doctrine: How a Zoning Regulation May Affect First Amendment Freedoms.” Freedom Forum 2 (2002).
Hudson, David. “The Secondary Effects Doctrine: Stripping Away First Amendment Freedoms.” Stanford Law & Policy Review 23 (2012).
Hudson, David. “The Secondary Effects Doctrine: The Evisceration of First Amendment Freedoms.” Washburn Law Journal 37 (1997).
Rienzi, Mark, and Stuart Buck. “Neutral No More: Secondary Effects Analysis and the Quiet Demise of the Content-Neutrality Test.” Fordham Law Review 82 (2013).