Title: Zoning Laws | The First Amendment Encyclopedia
Headings: The First Amendment Encyclopedia
The First Amendment Encyclopedia
Zoning Laws
By David Schultz (Updated September 2017 by David L. Hudson Jr.)
Burdensome, arbitrary and discriminatory zoning laws have been struck down
First Amendment challenges to zoning often deal with adult entertainment
Court has upheld zoning laws under secondary effects doctrine
Court has upheld zoning laws meant to regulate neighborhood activity

Content: First Amendment challenges to zoning often deal with adult entertainment
First Amendment challenges most often arise when governments use zoning to regulate certain types of business establishments such as those engaged in adult entertainment. This might include businesses where nude or semi-nude dancing occurs, where adult movies are shown or sold, or where sexually orientated products are sold. The rationale that city officials use is called the secondary effects doctrine. Under this doctrine, city officials do not regulate adult businesses because they engage in offensive, unpopular expression, but because the businesses cause adverse secondary effects, such as increased crime and decreased property values. Communities have attempted to use zoning laws to prevent adult entertainment businesses from operating within their borders. However, in decisions such as Sable Communications of California v. Federal Communications Commission (1989) the Court stated that “Sexual expression which is indecent but not obscene is protected by the First Amendment,” and government cannot totally restrict efforts to access this type of speech or communication. Thus, in cases such as Schad v. Mount Ephraim (1981) the Supreme Court ruled that while zoning may create adult zones or limit the placement of adult entertainment businesses within a community, the community may not zone them out completely or restrict them to small and highly inaccessible areas. Court has upheld zoning laws under secondary effects doctrine
While zoning may not target non-obscene protected speech activities, the Supreme Court has given communities some power to utilize land use laws to regulate adult businesses under the secondary effects doctrine. In Young v. American Mini Theatres (1976), a divided Supreme Court upheld a city zoning ordinance that prohibited the operation of any “adult” movie theater, bookstore, and similar establishments within 1,000 feet of any other such establishment or within 500 feet of a residential area. The majority ruled that such a zoning ordinance was a valid time, place and manner regulation because the speech in question enjoyed lesser First Amendment protection and because the law did not totally ban these establishments from the community.