Court Upholds Use of Zoning to Curb Sex Firms

The Supreme Court, upholding the far-ranging use of municipal zoning power, ruled Tuesday that communities may relegate adult movie theaters to isolated areas to combat the spread of crime, congestion and economic decline.

In a 7-2 decision, the justices approved an ordinance enacted in Renton, Wash., that was designed to keep adult movie houses away from schools, churches and residential areas by restricting them to a largely vacant site that theater owners called an “industrial wasteland.”

The ordinance does not violate the right to free expression because it still permits a “reasonable opportunity” to operate an adult establishment within city limits, the court said.

“The Renton ordinance represents a valid governmental response to the admittedly serious problems created by adult theaters,” Justice William H. Rehnquist wrote for the majority. “Renton has not used the power to zone as a pretext for suppressing expression, but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large.”

The decision was a significant victory for a diverse coalition of governmental groups and officials that had joined Renton authorities in asking the justices to overturn a ruling by a federal appeals court in San Francisco holding the ordinance unconstitutional. The Supreme Court’s decision applies by implication to bookstores and other businesses that sell sexually explicit material.

The justices in 1976 had upheld a Detroit ordinance requiring the dispersal of adult theaters. But, since then, similar measures enacted by several other cities have been struck down by federal appeals courts, and the groups supporting Renton contended that the courts were erecting insurmountable barriers to controlling sex-oriented establishments.

Fear of Urban Decay

Renton, a city of 32,200 near Seattle, enacted its ordinance after citizen groups expressed concern that adult theaters inevitably would result in urban decay. The ordinance barred adult theaters from within 1,000 feet of parks, schools, churches and residences and permitted them only within a largely undeveloped 520-acre site. The law was challenged as unconstitutional by Playtime Theatres, which sought to show X-rated films at a movie house it had purchased downtown.

In Tuesday’s decision (Renton vs. Playtime, 84-1360), the high court made clear that such ordinances are permissible so long as they are not aimed at suppressing the content of the movies and give adult theaters “reasonable alternatives” for location. “Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton,” Rehnquist wrote.

Significantly, the court held that, in enacting such ordinances, cities may rely on the experiences of other communities that have suffered neighborhood blight and other secondary effects from the spread of adult theaters. The appeals court had held that Renton officials must show their own evidence of adverse effects. But now communities will not have to wait until adult theaters are in operation before passing legislation limiting their locations.

Brennan, Marshall Dissent

In dissent, Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, contended that the ordinance was improperly based exclusively on the content of the films to be shown.

Brennan said that, by restricting theaters to land “largely unsuited” to their business, the city had effectively banned a constitutionally protected form of speech--films that may be sexually explicit but that are not legally obscene.

In another case decided Tuesday, the court handed government prosecutors a victory by holding that a trial jury’s verdict of guilty automatically made “harmless” the improper simultaneous appearance of two prosecution witnesses before a grand jury.

The court, by a vote of 8 to 1, reinstated the drug and conspiracy convictions of two West Virginia men whose attorneys did not learn of the improper grand jury procedure until after their trial began. Federal rules of criminal procedure prohibit more than one witness from appearing before a grand jury at one time.

In an unusual concurring opinion, Justice Sandra Day O’Connor disagreed sharply with the analysis in the majority opinion, written by Rehnquist, a fellow conservative with whom she usually agrees.

O’Connor, joined by Brennan and Justice Harry A. Blackmun, said that, by focusing on the guilty verdict as conclusive proof that the grand jury error was “harmless,” the court was making grand jury rules protecting defendants “a dead letter.” The ruling would give judges and prosecutors “a powerful incentive” to delay rulings on grand jury errors until the jury returned a verdict, she said.

‘Pretend-Rules’ Charged

Marshall, in a dissent, said that the decision demonstrates the court’s willingness to reduce legal protections to “pretend-rules” in order to affirm criminal convictions (U.S. vs. Mechanik, 84-1640).

In a decision making it easier for policemen to search automobiles, the court held, 5 to 4, that officers need not obtain a warrant to enter a car, if such entry is necessary to read an obscured vehicle identification number. And the justices upheld the weapons-possession conviction of a New York man who was arrested when officers, after stopping him for speeding, spotted a gun handle protruding from the car seat (New York vs. Class, 84-1181).