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Supreme Court Hearing Cases That Could Affect Video Stores

29 Nov, 2001 By: Joan Villa

The U.S. Supreme Court will hear oral arguments next week in a far-reaching case that will either uphold or limit a community's right to regulate video stores that devote as little as 10% of their floor space to adult product.

The Video Software Dealers Association (VSDA) has filed a “friend of the court” (amicus) brief along with five other organizations. The case, City of Los Angeles v. Alameda Books, is about whether the city has the right to restrict two adult businesses from operating under the same roof. The legalities, however, have more to do with communities' efforts to restrict adult businesses and in effect censor books and videos that are protected under First Amendment free speech rights, according to Sean Bersell, VSDA v.p. of public affairs.

“This isn't just about this case in L.A. and whether you can have two adult businesses colocated under one roof, it's all about efforts by local governments all across the country to harass businesses that carry adult product,” Bersell says.

The First Amendment protects adult video as free speech, but has allowed local communities to regulate the time, place and manner in which those businesses are conducted if they can show harmful effects on a community. For example, cities can prohibit adult businesses from locating within 500 feet of a school, park or church, if they can prove there are “negative secondary effects” from those activities, such as increased crime or lower property values, Bersell says.

In this case, Los Angeles tried to shut down a combination book store/video store that rented and sold sexual products and had viewing booths on the premises, but were separately owned. The city justified the closure on grounds the book store violated a 1978 ordinance that restricted two adult businesses from locating within 1,000 feet of one another. A study that found a positive correlation between concentrations of adult businesses and increases in prostitution, robberies, assaults and thefts was used to justify the law.

Both a district court and the 9th Circuit Court of Appeals found in favor of the businesses, saying the city had failed to prove that a “time, place or manner” restriction was warranted. But when the Supreme Court agreed to review the case, “most people felt this was a bad sign for the book store,” Bersell notes.

The VSDA worries that many cities try to narrowly define adult businesses so they can further restrict their operation. For example, just last week, the city of Dania Beach, Fla. enacted an ordinance defining an adult business as one with 20% of its floor space devoted to the category, he says. Some areas make the definition as little as 10%, and hundreds of these restrictive ordinances exist around the country, he adds.

“To say a mainstream video store that has an adult room with 10% of its titles is an adult business is unjustified and overreaching,” he says. “We say to the Supreme Court that they have to lay down the marker…[The cities] don't have free reign to call anyone they want an adult business.”

Furthermore, Bersell argues that if communities were held to the previous standard of proving negative secondary effects, no general video store with an adult room would qualify.

“We're not aware of a single study that looked at mainstream video stores and their effects,” he concludes. “So how could a community regulate a mainstream video store when there's no study out there that shows there's negative secondary effects, and of course we believe that if a study were done it would show just the opposite — that there are a lot of positive effects to having a video store in your neighborhood.”

After hearing oral arguments in the case Dec. 4, the court could issue an opinion any time before its session ends in June, Bersell says.

The effect of these ordinances can be chilling, since many retailers simply avoid adult product — which can be a profitable segment for many stores, he adds.

Al Welch is one retailer who would like the additional income from adult video but has chosen self-censorship in his Video Village store in Rockwall, Texas, rather than run afoul of a restrictive city ordinance dating from the mid 1980s that prohibits pornography within 1,000 feet of a church.

“You can't go 1,000 feet without a church in Rockwall,“ Welch says. “There's no doubt in my mind that they would just shut us down even though I'm a personal acquaintance of many people in government here.”

In a second case argued last month, Ashcroft v. Free Speech Coalition, the Supreme Court will decide whether to strike a clause from the Children Online Protection Act of 1998 that defines an “actual or simulated” sexual act using children under 18 or those who appear under age as harmful to minors, Bersell says. The VSDA has filed a brief asking the court to overturn that passage, because the effect would be self-censorship on the part of both filmmakers and video stores, he explains.

“The way the law is written it would apply to movies like Titanic and Traffic and Lolita,” adds Bersell. “Unless the Supreme Court says it's unconstitutional, the law will be out there and in force, and at some point some prosecutor might go after a video store for carrying these products.”

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