ZONING AND SECONDARY EFFECTS: THE FIRST AMENDMENT WINS (THIS TIME)

INTERVIEWED ON FIRST AMENDMENT LAW ON NBC'S TODAY SHOW, O'REILLY FACTOR & MSNBC TV; LOCAL CBS & NBC NEWS; BBC & CNN RADIO; WASHINGTON POST, USA TODAY & ASSOCIATED PRESS (click here).

By Jonathan L. Katz

UPDATE (September 2003): On September 10, 2003, the Maryland Court of Appeals delivered a resounding victory for First Amendment rights in the following Pack Shack case. Marks & Katz, LLC, filed a joint amicus brief that advanced this First Amendment victory (click here).

April 2001 - Be on the lookout for the upcoming Maryland Court of Appeals consideration of The Pack Shack, Inc., v. Howard County. Maryland's highest court will review the Court of Special Appeals' decision upholding Howard County, Maryland's zoning laws that force adult businesses into industrial zones.

With the Maryland Court of Special Appeals' Pack Shack zoning decision, we are seeing the dangerous results of permitting secondary effects considerations to prohibit otherwise protected free expression. Reaffirming the secondary effects doctrine, the U.S. Supreme Court's April 2000 Erie v. Pap's A.M. decision upheld Erie, Pennsylvania's ordinance mandating pasties and G-strings on exotic dancers. Erie v. Pap's goes beyond this limited holding to enable a whole host of limitations on adult entertainment through a claim -- even a thin claim -- of negative secondary effects from the adult entertainment that is involved. With this secondary effects climate, challenges to negative secondary effects studies and counter-secondary effects studies become a necessary weapon in the arsenal of adult businesses.

Clearly, it is impossible to carve out nice, neat exceptions to the First Amendment (e.g., censoring adult entertainment based on questionable negative secondary effects claims) without wounding the First Amendment, the Constitution, and basic liberty. It is just a matter of time before the censors start trying to apply Erie v. Pap's to non-sexual entertainment, as well. 

This article first appeared in 2001.

UPDATE: In December 2002, the Pennsylvania Supreme Court reinstated its invalidation of the above-discussed Erie, Pennsylvania anti-nudity ordinance. For more information on this development, see our article here. 

Marks & Katz, LLC, vigorously fights for the rights of the adult entertainment industry. We provide broad-based service to the industry for criminal and obscenity defense, constitutional and civil litigation, First Amendment advice, and business advice. Partner Jon Katz is President of the Free Speech Coalition of the District of Columbia, Maryland, and Virginia, Inc. The media frequently turns to Jon for opinions and analysis on vital issues facing the adult industry (click here). For further information on our experience serving the adult entertainment industry and Constitutional rights, click here. 

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