American Mini Theatres, Inc. v. Gribbs

LIVELY, Circuit Judge. This case deals with a city zoning ordinance which classifies and regulates “adult” movie theatres and bookstores solely on the basis of the content of the materials which they purvey. Except for one feature the zoning ordinance and a related code amendment were held valid by the district court as against charges that they violate the First and Fourteenth Amendments to the Constitution. We reverse. In 1962 the City of Detroit adopted an Official Zoning Ordinance which contained a finding that concentrations of certain types of businesses tended to have a deleterious effect upon the neighborhoods in which such concentrations took place. By section 66.0000 of that ordinance it was provided that not more than one of any such businesses might be placed within 1,000 feet of any other business establishment of a kind listed in the section. The businesses thus regulated were bars, transient hotels, poolrooms and similar establishments found in “skid row” areas of many cities. Whereas the purpose of most zoning ordinances is to establish separate zones for various uses and to confine such uses to those zones, thus segregating specified uses of land from each other and concentrating each use or class of uses into defined zones, Detroit adopted the theory of “inverse zoning” by which certain land uses were prohibited from concentrating and were required to maintain minimum distances from each other. Of course, all of the uses thus regulated were also subject to the general zoning features of the ordinance which limited them to commercial and industrial zones. Prior to 1972 the authorities noted the emergence of clusters of “adult” movie theatres and bookstores together with topless bars and “go go” establishments in certain areas of the City. In an attempt to control these concentrations of adult-type entertainment, the City adopted a series of amendments to the Official Zoning Ordinance and the City Code by ordinance # 742-G and # 743— G, both of which were made effective November 2, 1972. Ordinance # 742-G, inter alia, added new sections 32.0007, 66.0000 and 66.0103, which are reproduced in part as follows: Section 32.0007 Adult: Adult Book Store An establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to “Specified Sexual Activities” or “Specified Anatomical Areas,” (as defined below), or an establishment with a segment or section devoted to the sale or display of such material. Adult Motion Picture Theater An enclosed building with a capacity of 50 or more persons used for presenting material having as a dom[sic] presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to “Specified Sexual Activities” or “Specified Anatomical Areas”, (as defined below) for observation by patrons therein. Adult Mini Motion Picture Theater An enclosed building with a capacity for less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to “Specified Sexual Activities” or “Specified Anatomical Areas”, (as defined below), for observation by patrons therein. For the purposes of this Section, “Specified Sexual Activities” is defined as: 1. Human Genitals in a state of sexual stimulation or arousal; 2. Acts of human masturbation, sexual intercourse or sodomy; — 1016 — 3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. And “Specified Anatomical Areas” is defined as: 1. Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Section 32.0023 Cabaret. Group “D” Cabaret A cabaret which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers. 66.0000 Regulated Uses In the development and execution of this Ordinance, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations are itemized in this section. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area (i. e. not more than two such uses within one thousand feet of each other which would create such adverse effects). Uses subject to these controls are as follows: Adult Adult Book Store Adult Motion Picture Theater Adult Mini Motion Picture Theater Cabaret Group “D” Cabaret Establishment for the sale of beer or intoxicating liquor for consumption on the premises. Hotels or motels Pawnshops Pool or billiard halls Public lodging houses Secondhand stores Shoeshine parlors Taxi dance halls Section 66.0103 It shall be unlawful to hereafter establish any Adult Book Store, Adult Motion Picture Theater, Adult Mini Theater or Class “D” Cabaret within 500 feet of any building containing a residential, dwelling or rooming unit. This prohibition may be waived if the person applying for the waiver shall file with the City Plan Commission a petition which indicates approval of the proposed regulated use by 51 per cent of the persons owning, residing or doing business within a radius of 500 feet of the location of the proposed use, the petitioner shall attempt to contact all eligible locations within this radius, and must maintain a list of all addresses at which no contact was made. Ordinance # 743-G, an amendment to the Code of the City of Detroit, provides in part: It shall be unlawful for any person to hereafter operate an Adult Motion Picture Theater, Adult Mini Motion Picture Theater or Drive-in Theater until he shall have complied with the requirements of the Official Zoning Ordinance, the provisions of this article and other applicable ordinances of the City of Detroit. This ordinance contains definitions. of adult motion picture theatre, by reference to “Specified Sexual Activities” or “Specified Anatomical Areas,” using the same language as contained in ordinance 742 — G. In addition to specifying the license fees for each of the defined establishments, the ordinance contains the following provision: The Mayor may refuse to issue a license for the operation of any business regulated by this article, and may revoke any license already issued upon — 1017 — proof submitted to him of the violation by an applicant, or licensee, his agent or employee, within the preceding two years, of any criminal statute of the State, or of any ordinance of this city regulating, controlling or in any way relating to the construction, use or operation of any of the establishments included in this article which evidences a flagrant disregard for the safety or welfare of either the patrons, employees, or persons residing or doing business nearby. The plaintiffs-appellants are lessees and operators of “adult” motion picture theatres in the City of Detroit which are directly affected by the two ordinances in question. The Supreme Court held in Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), that zoning ordinances which classify property by the uses to which it is put and regulate such uses are a proper exercise of the police power. Noting the shift of population in this country to the cities, the Court reasoned that problems connected with police and fire protection, sanitation disposal and other traditional municipal services could be reduced by requiring that various areas of a city be set aside for certain uses and that incompatible uses be prohibited therein. The Euclid zoning ordinance was claimed to be an unreasonable and confiscatory regulation in the' guise of exercise of the police power, but the Court held that such laws result from a legitimate exercise of the police power in furtherance of the general welfare and that the legislative judgment must control in setting the classifications and defining the zones. Id. at 388, 47 S.Ct. 114. More recently in Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the Supreme Court upheld the validity of a zoning provision which limited a residential area to one-family dwellings and defined the word “family” as “[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.” Id. at 2, 94 S.Ct. at 1538. The Court found that the ordinance affected no fundamental rights guaranteed by the Constitution and therefore applied the “rationale relationship” test to the claim that the ordinance violated the equal protection clause of the Four-. teenth Amendment. In dissent, Mr. Justice Marshall stated that the ordinance affected the plaintiffs’ “fundamental rights of association and privacy guaranteed by the First and Fourteenth Amendments.” Id. at 13, 94 S.Ct. at 1543. Thus he would have applied the stricter “compelling interest” test and held the ordinance invalid. There appears to be no disagreement that the power of a municipality to regulate land uses, however desirable and important the goal may be, cannot be achieved by means of laws which deprive affected persons of their constitutional rights. This was the holding in Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), where the Court struck down an ordinance of the City of Louisville which provided that a person of one race could not move into and occupy property in a block where the majority of houses were already occupied by persons of a different race. The Supreme Court did not question the City’s claim that the purpose of the ordinance was to promote public peace and prevent conflict and ill will, but held that “this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.” Id. at 81, 38 S.Ct. at 20. Further, in upholding a comprehensive land use plan for the District of Columbia, the Supreme Court noted in Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954), that although matters of this kind are within the police power of a community, the wide latitude in classifying and limiting property uses which is the province of the legislature is “[s]ub — 1018 — ject to specified constitutional limitations.” In its brief and oral argument the City of Detroit recognizes that it is regulating matter presumably protected by the First Amendment, but maintains that the ordinances contain no absolute prohibition against dissemination of the First Amendment materials and that the degree of regulation exercised here is permissible under standards enunciated by the Supreme Court. The City filed a number of affidavits by persons trained in the social sciences and experts in real estate values to show that concentrations of adult-type bookstores and theatres would destroy the neighborhood values of the areas in which these concentrations took place. While counter affidavits filed by plaintiffs took issue with the claims that actual property values had declined in areas where these concentrations had taken place, there was nothing offered by the plaintiffs to dispute the statements concerning the decline in “quality of life” and the increase in problems associated with police and fire protection and sanitation brought about by such concentrations. The City of Detroit has demonstrated a compelling and legitimate interest in preserving neighborhood values, aesthetic and social as well as economic. The question is whether ordinances 742-G and 743-G constitute a permissible means of achieving this end. The City maintains that these ordinances represent the only reasonable means of restricting the numbers of regulated uses which may be located in any neighborhood. It is argued that the choice of methods is left to the legislative body of the City, and that it has chosen a method which only indirectly affects the right of free expression guaranteed by the First Amendment. The City relies principally on United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which upheld a statute making it illegal to mutilate or destroy a draft card. The Court in O’Brien noted that the statute clearly did not abridge free speech on its face and stated that in dealing with conduct containing both “speech” and “nonspeech” elements, “ . . . we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377, 88 S.Ct. at 1679. After discussing the important governmental interest involved in orderly administration of the selective service system, the Court concluded that any effect which the statute had on the right of free speech was incidental and that the defendant had been convicted solely for the “noncommunicative impact of his conduct. . . . ” Id. at 382, 88 S.Ct. 1673. Then, as if to make clear the limits of its holding, the Court speaking through Mr. Chief Justice Warren, stated, The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U.S. 359 [51 S.Ct. 532, 75 L.Ed. 1117] (1931), for example, this Court struck down a statutory phrase which punished people who expressed their “opposition to organized government” by displaying “any flag, badge, banner, or device.” Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct. See also, NLRB v. Fruit & Vegetable Packers Union, 377 U.S. 58, 79 [84 S.Ct. 1063, 1074, 12 L.Ed.2d 129] (1964) (concurring opinion). 391 U.S. at 382, 88 S.Ct. at 1682. The appellants argue that the two ordinances in the present ease are unconstitutional in that they directly impair the right of free expression guaranteed by the First Amendment; that they — 1019 — violate the due process clause of the Fourteenth Amendment in that they are both vague and overbroad; that they fail to provide proper procedural safeguards to those affected by their provisions; and that they violate the equal protection clause of the Fourteenth Amendment. We reject the argument that the real purpose of the ordinances is to bypass the requirements for criminal prosecution of persons disseminating obscene materials and to effect this end indirectly by means of zoning and licensing regulations. We are bound by the legislative statement of the purpose of these acts and note that in United States v. O’Brien, supra, the Court held that it is only the effect of legislation which is important in considering a constitutional challenge, not its purpose. Therefore, regardless of the purpose of the legislation, if its effect is to establish a means by which undesirable films and books which have not been declared obscene may be regulated in a way which makes resort to criminal laws dealing with obscenity largely unnecessary, the device is subject to close scrutiny. See Bantam Books v. Sullivan, 372 U.S. 58, 69, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). We also note that although the application of the ordinances is confined to “adult” forms of entertainment, they are not designed to protect minors from harmful influences. Compare Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). There can be no doubt that movies, though they may be intended primarily for entertainment and are produced for profit, are a form of expression protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); Interstate Circuit v. Dallas, 390 U.S. 676, 682, 88 S.Ct. 1298, 20 L.Ed.2d 415 (1968). Each of the cases just cited dealt with statutes and ordinances which were found to violate the due process guarantees of the Fourteenth Amendment, either because of vagueness or over-breadth or failure to provide for speedy judicial determination of the validity of the particular restraint applied. Believing as we do that the two ordinances under consideration in this case are invalid under the equal protection clause of the Fourteenth Amendment, we will pass to a discussion of that issue without dwelling on the due process challenges. In Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), a poll tax case, the Supreme Court stated: “We have long been mindful that where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined.” (Citations omitted.) 383 U.S. at 670, 86 S.Ct. at 1083. To be valid a statutory classification which affects fundamental freedoms must be necessary to the achievement of a compelling state interest and not just rationally related to a valid public purpose. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Since the materials to be exhibited in the theatres of appellants have not been judicially declared obscene under the criteria and procedures prescribed by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and related cases, these materials are presumptively within the protection of the First Amendment. The rights guaranteed by the First Amendment are recognized as among the most fundamental rights possessed by a free people. In the present case, claims of abridgment of freedom of expression are conjoined with claims of denial of equal protection. When an equal protection challenge is based on a classification which results in abridgment of First Amendment rights, those seeking to uphold the classification bear a heavy burden. The City did not discharge its heavy burden of justifying the prior restraint which these ordinances undoubtedly impose by merely establishing that — 1020 — they were designed to serve a compelling public interest. Since fundamental rights are involved, the City had the further burden of showing that the method which it chose to deal with the problem at hand was necessary and that its effect on protected rights was only incidental. The City could legally regulate movie theatres and bookstores under its police powers by providing that such establishments be operated only in particular areas. It might also have validly provided that such establishments be operated only during certain hours. Cases permitting reasonable regulations as to “time, place and manner” were discussed by the Supreme Court in the recent opinion in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). However, this ordinance selects for special treatment particular business enterprises which fall within the general business classifications permissible under zoning laws and classifies them as regulated uses solely by reference to the content of the constitutionally protected materials which they purvey to the public. A local law, similar in its effect on First Amendment rights, was considered by the Supreme Court in Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). There the City of Chicago had enacted an ordinance prohibiting picketing within 150 feet of any school building during classes “provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute.” The Court held that the ordinance was invalid because it described what was permissible picketing in terms of its subject matter, stating, “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Id. at 95, 92 S.Ct. at 2290. The City of Chicago asserted that the ordinance dealt with a compelling public interest and that its purpose was not to impose improper content censorship, but to prevent disruption in the schools. The Court recognized that the City did have a substantial interest in the end which it was seeking to achieve, but determined that the ordinance sought to advance this interest in a manner which was inconsistent with the requirements of the equal protection clause. The ordinances in the present case, like those in Mosley, “slip[ped] from the neutrality of time, place, and circumstances into a concern about content.” 408 U.S. at 99, 92 S.Ct. at 2292, quoting from: Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 29. Decided on the same day as Mosley was Grayned v. City of Rockford, supra, in which an anti-noise ordinance was upheld because it “is narrowly tailored to further Rockford’s compelling interest in having an undisrupted school session conducive to the students’ learning, and does not unnecessarily interfere with First Amendment rights.” 408 U.S. at 119, 92 S.Ct. at 2305. The Rockford ordinance applied to all noise or diversion which might disrupt school sessions or classes without any classifications which required scrutiny under the equal protection clause. In Konigsberg v. State Bar, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1007, 6 L.Ed.2d 105 (1961), Mr. Justice Harlan spoke of “general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, [which] have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests ...” (emphasis added). The ordinances under review in the present case do not fit this description. This court is keenly aware of the serious problems created in the major cities of the country by the deterioration of established neighborhoods. We are particularly sensitive to the problems of Detroit, the largest city within this Circuit. In holding that the two ordinances under review are unconstitutional we do not suggest that the City of Detroit is powerless to deal with its urban problems. On the contrary, we urge it to heed the advice of Mr. Justice Marshall in his dis — 1021 — sent in Village of Belle Terre v. Boraas, supra, where he stated, “I would find the challenged ordinance unconstitutional. But I would not ask the village to abandon its goal of providing quiet streets, little traffic, and a pleasant and reasonably priced environment in which families might raise their children. Rather, I would commend the town to continue to pursue those purposes but by means of more carefully drawn and even-handed legislation.” 416 U.S. at 20, 94 S.Ct. at 1546. The judgment of the district court is reversed for entry of a declaratory judgment that the two ordinances considered herein are invalid under the equal protection clause of the Fourteenth Amendment, and for further proceedings consistent therewith. Costs to the appellants.