Supreme Court Asked to Void Decision on ‘Porn Zoning’

In a pivotal test of “porn zoning” laws, the state Supreme Court was asked Tuesday to overturn a lower-court ruling that government officials contend severely inhibits cities from regulating the showing of sexually explicit movies.

The decision, issued in 1981 by a state Court of Appeal, held that municipalities may bar adult theaters from a certain locale only when they show a “preponderance” of X-rated films.

An attorney for the city of Long Beach told the justices that the ruling had made it virtually impossible to enforce zoning ordinances regulating adult theaters. If theater owners can show prohibited films 50% of the time and still evade an ordinance, such laws become meaningless, said Deputy City Prosecutor Gerry L. Ensley.

“Porn zoning in California is dead under (the ruling),” he said.

However, Ensley encountered a wave of skepticism from the justices when he urged the court to allow cities to act against theater owners for only a single showing of a sexually explicit movie.

Question Posed

Newly appointed Justice Joyce L. Kennard, sitting on the high court for the first time, asked the attorney how a single such showing could adversely affect a community.

“This kind of material, ipso facto, attracts crime, blight and juvenile delinquency,” Ensley replied. “We’re not banning such theaters, we’re restricting their location. . . . People shudder and think of us as modern-day Puritans, but we’re not.”

Stanley Fleishman of Los Angeles, attorney for the theater owners in the case, urged the court to uphold the 1981 ruling or, better yet, strike down porn-zoning itself as a violation of free speech under the state Constitution.

The city, Fleishman said, was trying to use zoning laws to close adult theaters they have been unable to ban under obscenity laws. “It’s an end run--an unconstitutional attempt to achieve indirectly what the city can’t do directly,” the attorney said. “The U.S. Supreme Court has approved (porn-zoning), but that doesn’t mean you have to under the state Constitution.”

The justices, meeting in Los Angeles, heard arguments in a 12-year battle over a Long Beach ordinance that prohibits adult theaters within 1,000 feet of a public school or religious institution and within 500 feet of a residential area. A decision in the case is due by this summer.

The so-called porn zoning concept was approved by the U.S. Supreme Court in a landmark 1976 ruling. While adult theaters cannot be banned, their location can be restricted by cities--either by concentrating them or dispersing them within the community--so long as there are reasonable alternative sites, the court said.

But since then, cities in California and elsewhere have had difficulty in drafting laws that meet court approval. And the courts themselves have been divided on key questions raised by such ordinances--such as how many X-rated movies must be shown to constitute a prohibited adult theater.

In the 1981 decision, the state Court of Appeal, ruling on a Covina ordinance, held that a theater must show a “preponderance” of sexually explicit films before it would be subject to municipal regulation as an adult theater. But the court did not say how “preponderance” was to be further defined.

In 1986, another Court of Appeal, ruling in an earlier case involving the Long Beach ordinance, refused to follow the 1981 ruling and held that the prohibition of a single showing of a sexually explicit film does not violate the First Amendment right of free speech. But later that year, the state Supreme Court barred that ruling from being applied as a binding precedent in other cases.

Long Beach officials then brought misdemeanor charges in an effort to enforce the city’s porn-zoning ordinance on the Lakewood Theater, a movie house located near Long Beach City College that had been showing X-rated films on one screen in the theater and R-rated films on another screen.

In 1987, Los Angeles Superior Court Judge Jack M. Newman blocked the city from prosecuting the theater owners, finding that X-rated films were not in predominant use as required by the 1981 appellate court ruling. The next year, another appellate court upheld the judge’s ruling.

In Tuesday’s hearing, several justices raised the possibility of seeking middle ground in defining adult theaters that would enable cities to regulate movie houses that “customarily” or “ordinarily” show X-rated films.

But Ensley replied that such a standard could be attacked as too vague and stood by his plea for the single-showing definition. If such an approach is found later to inhibit free speech, he said, “we can strike it down later.”

Several court members continued to press the attorney on that issue.

“Are you saying that if a theater decides to show a sex movie once a year, on Halloween, that that is a blight on the neighborhood?” asked Justice Stanley Mosk.

Ensley replied that he thought authorities would be unlikely to prosecute for single showings. But he said that any other standard would invite widespread violation of zoning laws.