Local Authorities Gaining Ground in Fight Against Adult Businesses

Local jurisdictions are being given a greater opportunity to decide how to handle films and other activities they consider obscene, two law professors say.

Although the U.S. Supreme Court has refused to authorize the closure of a theater for showing obscene films, it has acted “to loosen up the ease in which state and local communities can regulate this kind of material,” William Van Alstyne of Duke University said.

Van Alstyne, who teaches constitutional law in regards to freedom of expression issues, said that the present court “has been exceedingly conservative in its trend under the First Amendment in general and obscenity in particular.”

“The court has allowed states to use a looser definition of obscenity,” he said in a telephone interview last week. “Second, they’ve allowed them to jack up the penalty. Third, they’ve allowed them to adopt a number of zoning ordinances that drive these places into limited locations.

“Fourth, they’ve invested much more discretion in juries, so that the fate of a magazine or movie producer depends more on local juries than the state constitutional law than it did 10 years ago.”

Richard Fallon, an assistant professor of law at Harvard University specializing in First Amendment issues, said that the present Supreme Court seems “more open to allowing pornographic speech to be zoned (rather) than banned. That’s a distinction with a certain amount of common-sense attraction. If the argument is that it offends some people, instead of banning it, why not move it out of the way?”