Municipalities have long sought to mitigate the adverse
secondary effects of adult entertainment. When adverse secondary
effects are the focus, courts have generally applied intermediate
scrutiny: the regulation must serve a substantial government
interest; the regulation must be "narrowly tailored" to
accomplishing that interest; and there must be "reasonable
alternative avenues of communication." See D.H.L. Assocs., Inc.
v. O'Gorman, 199 F.3d 50, 59 (1st Cir. 1999); D.H.L.
Assocs., Inc. v. Bd. of Selectmen of Tyngsborough, 64 Mass.
App. Ct. 254, 257 (2005).
Yet, in evaluating the constitutionality of government
regulation under Article 16 of the Massachusetts Declaration of
Rights, Massachusetts courts have varied between utilizing the
federal standard and adopting a more protective standard, depending
on the circumstances. When zoning is involved - such as restricting
the specific location of an adult business - Massachusetts courts
have applied the standard applicable under the First Amendment to
the United States Constitution, as this latter standard is viewed
as sufficiently safeguarding the rights of Massachusetts citizens.
See D.H.L. Assocs., 64 Mass. App. Ct. at 257.
Conversely, in certain other respects, the federal standard does
not sufficiently protect such rights and, as a result, a different
outcome may ensue. For example, a public indecency ordinance
prohibiting public nudity was held unconstitutional under Article
16 - even though a similar ordinance passed constitutional muster
under the First Amendment when reviewed by the United States
Supreme Court. Compare Mendoza v. Licensing Board of Fall
River, 444 Mass. 188 (2005), with City of Erie v. Pap's
A.M., 529 U.S. 277 (2000).
Regulating Adverse Secondary Effects
But what exactly is an adverse secondary effect? Examples of
adverse secondary effects include, but are not limited to, crime
prevention, sustaining property values, impact on local businesses,
and protecting and preserving the quality of life. See City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (2000).
Combating these adverse secondary effects from adult entertainment
can be considered a substantial government interest. Even
Mendoza, which invalidated a public indecency ordinance
under Article 16, recognized that crime prevention, maintaining
property values and protecting the public health could serve as
substantial government interests. See 444 Mass. at 198-99.
However, the substantial government interest must be
sufficiently demonstrated in either the legislative or judicial
record. See Cabaret Enterprises, Inc. v. Alcoholic Beverages
Control Comm'n, 393 Mass. 13, 17 (1984). Moreover, the
substantial government interest must be a motivating factor in the
enactment of the government regulation. See T & D Video,
Inc. v. City of Revere, 423 Mass. 577, 581 (1996). Renton
recognizes - under First Amendment jurisprudence - that, in
adopting an adult entertainment regulation, a municipality can rely
upon the experiences of and evidence involving other municipalities
that "is reasonably believed to be relevant." See 475 U.S. at
52.
However, a fatal defect in enactment occurs when a municipality
has not identified any evidence of a substantial government
interest to justify its regulation of adult entertainment
businesses. Such a scenario may exist where the proponent, the
local planning board or the local legislative body have not
identified any substantial governmental interest, findings or other
evidence for the targeted secondary effect, and the text of the
regulation is similarly silent. Under this scenario, courts have
readily invalidated government regulations, without considering the
other prongs of intermediate scrutiny. See, e.g. T & D
Video, 423 Mass. at 581-82. If the basis for the government
regulation is first articulated after enactment, it is already too
late. See id. at 581. Thus, in T & D Video, the
Supreme Judicial Court invalidated adult entertainment ordinances
because the legislative record was "barren," there was no support
contained in the express intent and purpose of the ordinances, and
the justification for the ordinances was first identified during
litigation, long after the ordinances were enacted and enforced.
See id. at 581-82.
Mendoza presented another scenario, where the
pre-enactment evidence, while existing, did not sufficiently fit
the targeted activities. The public indecency ordinance in
Mendoza generally prohibited public nudity. However, the
studies cited to support the challenged ordinance were not specific
to "nudity per se" and instead restricted in focus to the adverse
secondary effects of sexually oriented businesses. See 444 Mass. at
198 n. 13. Thus, the Supreme Judicial Court criticized the cited
studies as a basis to broadly address the "secondary effects of
public nudity." See id.
The 'Reasonableness' Standard
Subsequently, in Showtime Entertainment LLC v. Town of
Mendon, which was certified by the United States Court of
Appeals for the First Circuit, the Supreme Judicial Court recently
considered the sufficiency of the evidence for a local bylaw
prohibiting the sale and consumption of alcohol on the premises of
an adult entertainment establishment. 472 Mass. 102 (2015). While
Showtime Entertainment ultimately held that the local
bylaw was not narrowly tailored, it is nonetheless instructive on
the type of evidence sufficient to justify a government regulation
directed at the adverse secondary effects of adult
entertainment.
The alcohol prohibition in Showtime Entertainment was
enacted by the town meeting, the local legislative body, which also
enacted various adult entertainment zoning bylaws. To justify the
alcohol prohibition, a local citizens group made a presentation,
and in doing so cited two studies linking adult entertainment
businesses to an increase in crime. See id. at 104. One of these
studies involved the City of Garden Grove, California, analyzing
data from 17 years before the challenged alcohol prohibition was
enacted, and it expressly correlated the availability of alcohol in
the vicinity of adult businesses to higher crime rates. See id. at
104 n.3. The text of the challenged alcohol prohibition also
identified a stated concern with curbing anticipated crime impacts
from combining alcohol and adult entertainment.
In Showtime Entertainment, the Supreme Judicial Court
acknowledged the secondary effects doctrine by recognizing that a
demonstrated government interest targeting adverse secondary
effects - as opposed to the content of protected speech - was the
dividing line between content-based regulations (subject to the
more demanding strict scrutiny review) and content-neutral
regulations (subject to the less demanding intermediate scrutiny
review). See id. at 107. Provided that these adverse secondary
effects were demonstrated in the judicial record or legislative
record - as an actual consideration occurring prior to enactment,
and not for the first time in litigation - a substantial government
interest could be established. See id.
Notably, in Showtime Entertainment, the evidentiary
standard for demonstrating an adverse secondary effect was regarded
as less exacting than perfection. See id. at 108 n.5. Instead, only
a reasonableness standard was implicated: "the evidence before the
municipality must lead to the reasonable conclusion that a
countervailing state interest exists in fact." See id. Thus, the
studies cited in the town meeting presentation constituted evidence
reasonably supporting the stated concern with secondary crime
effects from combining adult entertainment and alcohol. See id. at
108. Indeed, a study was criticized by the plaintiff for
highlighting secondary crime effects within a defined geographic
radius of an adult business, rather than "at" the site of the adult
business - but the Supreme Judicial Court held that this was
sufficient because the radius included the center of that radius
(i.e., the site of the adult business). See id. at 108
n.6.
The studies presented to the legislative body in Showtime
Entertainment supported a reasonable conclusion of curbing
secondary crime effects and the criticisms to these studies were
rejected as insufficient. See id. at 108-09. Although the plaintiff
challenged the use of statistics as discussed in an academic
article - this was insufficient because the defendant town did not
cite the studies referenced in that article. The Supreme Judicial
Court recognized that affirmative evidence could be used to
displace the reasonableness of a conclusion that a countervailing
government interest existed - but no such affirmative evidence was
presented in Showtime Entertainment. Accordingly, based on
the two studies cited, the town defendant demonstrated a
pre-enactment government interest in crime prevention and it
satisfied the first prong of intermediate scrutiny.
Conclusion
Showtime Entertainment is significant for maintaining
the similarities between the First Amendment and Article 16 in the
pre-enactment evidentiary bar, when regulating the adverse
secondary effects of adult entertainment. The standard involves
reasonableness - not precision or perfection. If the evidence cited
by the government reasonably supports the adverse secondary effect
being targeted, then it may satisfy the first prong of intermediate
scrutiny.
Moreover, Showtime Entertainment recognizes that
studies and evidence not commissioned by municipalities, as well as
the experiences of other municipalities, may suffice. Where
Renton first contemplated that a municipality could rely
upon outside studies, Showtime Entertainment continues
this rationale through the Article 16 analysis. Showtime
Entertainment therefore is in accord with Renton and
the predicaments of municipalities, which may lack the financial
resources to conduct their own studies, but nonetheless seek to
proactively address adverse secondary effects before such effects
are realized within their own borders.
Showtime Entertainment is also consistent with the
potential for municipalities to proceed proactively and experiment
with innovative solutions to adverse secondary effects - while at
the same time allowing expressive content to be communicated -
before such effects appear and necessitate a reactive solution.
Indeed, a plurality of the United States Supreme Court contemplated
that municipalities should have a "reasonable opportunity to
experiment with solutions to address the secondary effects of
protected speech" and, based upon such experimentation, supporting
empirical evidence may not even exist. See Alameda Books,
535 U.S. 425, 439-40 (2002) (plurality opinion). Because
reasonableness, not precision, is required, a municipality has the
flexibility to address potential adverse secondary effects even if
there is no direct supporting evidence in existence.
Still, a municipality should exercise care in its approach to
addressing adverse secondary effects. Evidence can be in the form
of firsthand experience, anecdotal recollections, findings from
judicial decisions, testimonials, studies, reports or otherwise.
Such evidence should be identified, reviewed and incorporated in
the text and the legislative process - and this evidence should be
consistent with the adverse secondary effects being targeted and
with a goal of withstanding any contrary affirmative evidence that
a plaintiff may introduce during litigation. Evidence, even if not
precisely on point, should reasonably be believed to be relevant to
the adverse secondary effects being targeted during the
pre-enactment process, and should reasonably support the rationale
proffered for the government regulation.