The secondary effects doctrine does not jive with current First Amendment doctrine, says a recent petition to the U.S. Supreme Court, Flanigan’s Enterprises, Inc. v. City of Sandy Springs. Current First Amendment law relies on something known as the content discrimination principle. Under this doctrine, courts look with more rigor at content-based laws than content-neutral laws. The thinking behind the distinction is that government should not be making speech and thought decisions for the people.
The secondary effects doctrine contorts the content discrimination principle, because it treats content-based laws as content neutral. Under this theory, the government is not regulating speech because of its content, but because of some other adverse, secondary effect, such as increased crime or decreased property values.
The doctrine arose in the adult entertainment context but has spread to other areas of First Amendment law, too. However, it is questionable whether the doctrine is viable in light of the U.S. Supreme Court’s 2015 decision Reed v. Town of Gilbert. In Reed, the U.S. Supreme Court struck down an Arizona town’s sign ordinance that treated signs differently based on their content even though there was not an insidious purpose to discriminate against different types of speech. “A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech,” the Court.
Given this explicit support of the content discrimination principle, how can the secondary effects doctrine survive? That is a good question and one that the petitioners in the Flanigan’s case are asking the U.S. Supreme Court to answer.
“This case presents the opportunity to correct course, resolve the fundamental inconsistency between Reed and the secondary effects doctrine, and provide guidance to the lower courts in evaluating content-based regulations of businesses offering sexually oriented speech and expression,” the petition reads.
The Flanigan’s case involves two adult businesses trying to survive in Sandy Springs, Georgia, which has imposed a series of restrictive zoning and other ordinances on their businesses. These restrictions impose restrictions on the performances of nude dancers, restrict alcohol at such businesses, and other regulations. “Enforcement of Sandy Springs’ regulations sounds the death knell for Petitioners’ businesses and the expression they present,” the petition reads.
The U.S. Supreme Court likely doesn’t care that much about the fate of adult businesses. It has not been a favored type of expression. After all, the Court created the secondary effects doctrine in adult business zoning cases.
However, the Court should care very much about resolving the undeniable tension between the enhanced commitment to the content discrimination principle in Reed and the secondary effects doctrine.