When First Amendment Principles And Local Zoning Regulations Collide STEVEN I. BRODY* INTRODUCTION When two well-established and important constitutional principles face off against one another in the modern day forum of the courts, fundamental changes will occur which affect the nature of those principles and their interrelationships. Such is the case when the First Amendment protections afforded non-obscene but sexually explicit material have collided with the strong presumption of validity tradi- tionally afforded local zoning regulations. The First Amendment to the United States Constitution provides important protection of an individual's freedom of speech and free- dom of expression,' including protection of non-obscene but sexually explicit movies, books, magazines and dancing. 2 Since Village of * Associate, Siemon, Larsen & Marsh, Chicago, Illinois. B.A. 1985 Northern Illinois University; J.D. 1988, Northern Illinois University College of Law. The author would like to gratefully acknowledge Lisa M. Rove and William D. Ellison for their encouragement, generous help and thoughtful critique of drafts of this article. 1. "Congress shall make no law ... abridging the freedom of speech, or of the press . .. ." U.S. CONST., amend. I. The First Amendment has been made applicable to the states through the Due Process Clause of the Fourteenth Amend- ment. See Edwards v. South Carolina, 372 U.S. 229 (1963). 2. The First Amendment does not protect obscene material. See Miller v. California, 413 U.S. 15 (1973); Roth v. United States, 354 U.S. 476 (1957). Under the Supreme Court's test, enunciated in Miller, for determining whether material is obscene, the Court found material obscene if: (a) "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) [if] the work depicts or describes; in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) [if] the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller, 413 U.S. at 24 (citation omitted). However, sexually explicit material which is non-obscene is entitled to First Amendment protection. See Young v. American Mini-Theatres, 427 U.S. 50 (1976); see also Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir. 1990) (en banc) (held that nonobscene nude dancing is entitled to limited First Amendment protection and statute providing for total ban on nudity in public places was unconstitutional). NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 12 Euclid v. Ambler Realty Co.,' local zoning regulation has enjoyed a strong presumption of validity. In assessing the constitutionality of local zoning regulations, courts have generally applied the highly 4 deferential "mere rationality" standard of review. Inevitable conflicts have arisen between local governments at- tempting to regulate sexually oriented businesses,5 and the First Amendment, which protects the owners and operators, as well as purveyors, of such sexually oriented businesses. The resulting case law has wrestled with the difficult problem of the lawful scope of local zoning power over businesses that deal in these forms of expression. 6 The initial determination for any court reviewing a zoning ordi- nance which impacts First Amendment expression is the standard of review to be applied. If the ordinance is merely a time, place and manner restriction, the court will review the ordinance under the tests set forth in Heffron v. InternationalSociety for Krishna Conscious- ness, Inc.,7 and United States v. O'Brien.8 9 That initial determination will be based on the court's determination of whether the ordinance in question focuses merely on the place and manner in which adult uses can be operated (content-neutral), or whether the ordinance is aimed at restricting the content of the expression (content-based). 3. 272 U.S. 365 (1926). 4. See, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974); Euclid, 272 U.S. at 395. See generally DANIEL R. MANDELKER, LAND USE CONTROLS § 2.38 (1981); 1 NoiuAN WILLIAMS, JR., AMERICAN LAND PLANNING LAW § 7.03 (1988 & Supp. 1991). While in theory the "mere rationality" or "minimum scrutiny" test is applied to land use zoning regulations, some states continue to scrutinize zoning regulations in a manner reminiscent of Lochner-era substantive due process. See 1 WILLIAMS, supra, §§ 6.01-44; R. Marlin Smith, The Uncertain State of Zoning Law in Illinois, 60 CHi.-KENT L. REv. 93, 93-100 (1984). 5. For purposes of this Article, the term "sexually oriented businesses" refers only to non-obscene sexually explicit material and entertainment such as adult bookstores, adult theatres and the like. 6. In addition to these questions being raised with respect to adult uses, similar First Amendment/zoning issues have arisen with respect to the zoning of religious uses. See generally Mark C. Cordes, Where to Pray? Religious Zoning & the First Amendment, 35 KAN. L. REv. 697 (1987). 7. 452 U.S. 640 (1981). 8. 391 U.S. 367 (1968). 9. See infra text accompanying notes 40-41. Practically, the courts will gen- erally use the O'Brien test. However, in addition to the four-part test enunciated in O'Brien, the courts will also mandate that the third prong of the Heffron test be satisfied, i.e., reasonable alternative channels of communication. The combination of the O'Brien factors and the reasonable alternative channels of communication prong of Heffron make up what Professor Tribe calls the "track one" approach to content-neutral First Amendment questions. See infra notes 18-49 and accompanying text. 1992:6711 ZONING FOR ADULT USES Most courts which have reviewed adult use zoning ordinances have found the legislation to be content-neutral and have reviewed the ordinance under the O'Brien/Heffron tests. The case law to date strongly suggests that under the O'Brien! Heffron analysis there are three areas of concern for municipalities which pass adult use zoning ordinances and adult use owners who contemplate challenges to those ordinances: (1) the ordinance must provide a sufficient factual basis to support a finding of substantial or important governmental interest; (2) the ordinance's definitions of adult uses and restrictions must be narrowly tailored to affect only those businesses which the ordinance intends to regulate; and (3) the ordinance must provide reasonable alternative channels of communi- cation for the dissemination of the affected expression protected under the First Amendment. I. BACKGROUND A. FREEDOM OF SPEECH The fundamental right to freedom of speech is guaranteed in the First Amendment to the United States Constitution. 0 The framers of the Constitution intentionally provided for freedom of speech in order to promote an informed arena for ideological debate." One cannot be punished or discriminated against simply because his opinions or expressions are unpopular or are inconsistent with contemporary thinking.' 2 The Supreme Court has even adopted the following state- 10. See U.S. CONST., amend. I. 11. See Kenneth L. Karst, Equality as a Central Principle in the First Amend- ment, 43 U. Ci. L. REv. 20 (1975). 12. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 79 (1981) (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4-5, reh'g denied, 337 U.S. 934 (1949)). "[T]he court must remain attentive to the guarantees of the First Amendment, and in particular to the protection they afford to minorities against the 'standardization of ideas . by ... dominate [sic] political or community groups."' Id.; see also Basiardanes v. City of Galveston, 682 F.2d 1203, 1214 (5th Cir. 1982); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1217-18 (N.D. Ga. 1981) ("that expression is sexually oriented ... does not affect its First Amendment protection"). The Court in Terminiello stated that [t]he vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote . ., it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes .... That is why freedom of speech, though not absolute, is nevertheless NORTHERN ILLINOIS UNIVERSITY LA W REVIEW [Vol. 12 ment made by Voltaire in summarizing its zealous adherence to First Amendment principles: "I [may] disapprove of what you say, but I will defend to the death your right to say it."' 3 Thus, the principle of freedom of speech and protection of that right is a fundamental component of the First Amendment and the guarantees provided by the Constitution. Although the public has a right to free speech, and the Supreme Court gives First Amendment guarantees broad protection, the Court has recognized that government has the right to reasonably control the dissemination of information,' 4 provided the government complies protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. Terminiello v. City of Chicago, 337 U.S. 1, 4-5, reh'g denied, 337 U.S. 934 (1949). 13. Young v. American Mini-Theatres, Inc., 427 U.S. 50, 63, reh'g denied, 429 U.S. 873 (1976) (citing S. Tallentyre, The Friends of Voltaire 199 (1907)); see also E- Bru, Inc. v. Graves, 566 F. Supp. 1476 (D.N.J. 1983). In Graves, Judge Sarokin commented on Voltaire's epithet: Voltaire did not write: "I disapprove of what you say, but will defend to the death your right to say it, unless the subject is sex." Nor did the framers of the United States Constitution.