Reasonableness versus precision: SJC clarifies evidentiary standard for regulating adverse secondary effects of expressive content

Issue January/February 2016 By Brandon H. Moss

Municipalities have long sought to mitigate the adverse secondary effects of adult entertainment. When adverse secondary effects are the focus, courts have generally applied intermediate scrutiny: the regulation must serve a substantial government interest; the regulation must be "narrowly tailored" to accomplishing that interest; and there must be "reasonable alternative avenues of communication." See D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 59 (1st Cir. 1999); D.H.L. Assocs., Inc. v. Bd. of Selectmen of Tyngsborough, 64 Mass. App. Ct. 254, 257 (2005).

Yet, in evaluating the constitutionality of government regulation under Article 16 of the Massachusetts Declaration of Rights, Massachusetts courts have varied between utilizing the federal standard and adopting a more protective standard, depending on the circumstances. When zoning is involved - such as restricting the specific location of an adult business - Massachusetts courts have applied the standard applicable under the First Amendment to the United States Constitution, as this latter standard is viewed as sufficiently safeguarding the rights of Massachusetts citizens. See D.H.L. Assocs., 64 Mass. App. Ct. at 257.

Conversely, in certain other respects, the federal standard does not sufficiently protect such rights and, as a result, a different outcome may ensue. For example, a public indecency ordinance prohibiting public nudity was held unconstitutional under Article 16 - even though a similar ordinance passed constitutional muster under the First Amendment when reviewed by the United States Supreme Court. Compare Mendoza v. Licensing Board of Fall River, 444 Mass. 188 (2005), with City of Erie v. Pap's A.M., 529 U.S. 277 (2000).

Regulating Adverse Secondary Effects

But what exactly is an adverse secondary effect? Examples of adverse secondary effects include, but are not limited to, crime prevention, sustaining property values, impact on local businesses, and protecting and preserving the quality of life. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (2000). Combating these adverse secondary effects from adult entertainment can be considered a substantial government interest. Even Mendoza, which invalidated a public indecency ordinance under Article 16, recognized that crime prevention, maintaining property values and protecting the public health could serve as substantial government interests. See 444 Mass. at 198-99.

However, the substantial government interest must be sufficiently demonstrated in either the legislative or judicial record. See Cabaret Enterprises, Inc. v. Alcoholic Beverages Control Comm'n, 393 Mass. 13, 17 (1984). Moreover, the substantial government interest must be a motivating factor in the enactment of the government regulation. See T & D Video, Inc. v. City of Revere, 423 Mass. 577, 581 (1996). Renton recognizes - under First Amendment jurisprudence - that, in adopting an adult entertainment regulation, a municipality can rely upon the experiences of and evidence involving other municipalities that "is reasonably believed to be relevant." See 475 U.S. at 52.

However, a fatal defect in enactment occurs when a municipality has not identified any evidence of a substantial government interest to justify its regulation of adult entertainment businesses. Such a scenario may exist where the proponent, the local planning board or the local legislative body have not identified any substantial governmental interest, findings or other evidence for the targeted secondary effect, and the text of the regulation is similarly silent. Under this scenario, courts have readily invalidated government regulations, without considering the other prongs of intermediate scrutiny. See, e.g. T & D Video, 423 Mass. at 581-82. If the basis for the government regulation is first articulated after enactment, it is already too late. See id. at 581. Thus, in T & D Video, the Supreme Judicial Court invalidated adult entertainment ordinances because the legislative record was "barren," there was no support contained in the express intent and purpose of the ordinances, and the justification for the ordinances was first identified during litigation, long after the ordinances were enacted and enforced. See id. at 581-82.

Mendoza presented another scenario, where the pre-enactment evidence, while existing, did not sufficiently fit the targeted activities. The public indecency ordinance in Mendoza generally prohibited public nudity. However, the studies cited to support the challenged ordinance were not specific to "nudity per se" and instead restricted in focus to the adverse secondary effects of sexually oriented businesses. See 444 Mass. at 198 n. 13. Thus, the Supreme Judicial Court criticized the cited studies as a basis to broadly address the "secondary effects of public nudity." See id.

The 'Reasonableness' Standard

Subsequently, in Showtime Entertainment LLC v. Town of Mendon, which was certified by the United States Court of Appeals for the First Circuit, the Supreme Judicial Court recently considered the sufficiency of the evidence for a local bylaw prohibiting the sale and consumption of alcohol on the premises of an adult entertainment establishment. 472 Mass. 102 (2015). While Showtime Entertainment ultimately held that the local bylaw was not narrowly tailored, it is nonetheless instructive on the type of evidence sufficient to justify a government regulation directed at the adverse secondary effects of adult entertainment.

The alcohol prohibition in Showtime Entertainment was enacted by the town meeting, the local legislative body, which also enacted various adult entertainment zoning bylaws. To justify the alcohol prohibition, a local citizens group made a presentation, and in doing so cited two studies linking adult entertainment businesses to an increase in crime. See id. at 104. One of these studies involved the City of Garden Grove, California, analyzing data from 17 years before the challenged alcohol prohibition was enacted, and it expressly correlated the availability of alcohol in the vicinity of adult businesses to higher crime rates. See id. at 104 n.3. The text of the challenged alcohol prohibition also identified a stated concern with curbing anticipated crime impacts from combining alcohol and adult entertainment.

In Showtime Entertainment, the Supreme Judicial Court acknowledged the secondary effects doctrine by recognizing that a demonstrated government interest targeting adverse secondary effects - as opposed to the content of protected speech - was the dividing line between content-based regulations (subject to the more demanding strict scrutiny review) and content-neutral regulations (subject to the less demanding intermediate scrutiny review). See id. at 107. Provided that these adverse secondary effects were demonstrated in the judicial record or legislative record - as an actual consideration occurring prior to enactment, and not for the first time in litigation - a substantial government interest could be established. See id.

Notably, in Showtime Entertainment, the evidentiary standard for demonstrating an adverse secondary effect was regarded as less exacting than perfection. See id. at 108 n.5. Instead, only a reasonableness standard was implicated: "the evidence before the municipality must lead to the reasonable conclusion that a countervailing state interest exists in fact." See id. Thus, the studies cited in the town meeting presentation constituted evidence reasonably supporting the stated concern with secondary crime effects from combining adult entertainment and alcohol. See id. at 108. Indeed, a study was criticized by the plaintiff for highlighting secondary crime effects within a defined geographic radius of an adult business, rather than "at" the site of the adult business - but the Supreme Judicial Court held that this was sufficient because the radius included the center of that radius (i.e., the site of the adult business). See id. at 108 n.6.

The studies presented to the legislative body in Showtime Entertainment supported a reasonable conclusion of curbing secondary crime effects and the criticisms to these studies were rejected as insufficient. See id. at 108-09. Although the plaintiff challenged the use of statistics as discussed in an academic article - this was insufficient because the defendant town did not cite the studies referenced in that article. The Supreme Judicial Court recognized that affirmative evidence could be used to displace the reasonableness of a conclusion that a countervailing government interest existed - but no such affirmative evidence was presented in Showtime Entertainment. Accordingly, based on the two studies cited, the town defendant demonstrated a pre-enactment government interest in crime prevention and it satisfied the first prong of intermediate scrutiny.


Showtime Entertainment is significant for maintaining the similarities between the First Amendment and Article 16 in the pre-enactment evidentiary bar, when regulating the adverse secondary effects of adult entertainment. The standard involves reasonableness - not precision or perfection. If the evidence cited by the government reasonably supports the adverse secondary effect being targeted, then it may satisfy the first prong of intermediate scrutiny.

Moreover, Showtime Entertainment recognizes that studies and evidence not commissioned by municipalities, as well as the experiences of other municipalities, may suffice. Where Renton first contemplated that a municipality could rely upon outside studies, Showtime Entertainment continues this rationale through the Article 16 analysis. Showtime Entertainment therefore is in accord with Renton and the predicaments of municipalities, which may lack the financial resources to conduct their own studies, but nonetheless seek to proactively address adverse secondary effects before such effects are realized within their own borders.

Showtime Entertainment is also consistent with the potential for municipalities to proceed proactively and experiment with innovative solutions to adverse secondary effects - while at the same time allowing expressive content to be communicated - before such effects appear and necessitate a reactive solution. Indeed, a plurality of the United States Supreme Court contemplated that municipalities should have a "reasonable opportunity to experiment with solutions to address the secondary effects of protected speech" and, based upon such experimentation, supporting empirical evidence may not even exist. See Alameda Books, 535 U.S. 425, 439-40 (2002) (plurality opinion). Because reasonableness, not precision, is required, a municipality has the flexibility to address potential adverse secondary effects even if there is no direct supporting evidence in existence.

Still, a municipality should exercise care in its approach to addressing adverse secondary effects. Evidence can be in the form of firsthand experience, anecdotal recollections, findings from judicial decisions, testimonials, studies, reports or otherwise. Such evidence should be identified, reviewed and incorporated in the text and the legislative process - and this evidence should be consistent with the adverse secondary effects being targeted and with a goal of withstanding any contrary affirmative evidence that a plaintiff may introduce during litigation. Evidence, even if not precisely on point, should reasonably be believed to be relevant to the adverse secondary effects being targeted during the pre-enactment process, and should reasonably support the rationale proffered for the government regulation.