Because of complaints about the “secondary effects” of adult book stores, such as increases in petty crimes, a city council passed an ordinance banning the operation of adult-oriented businesses in any “residential” or “commercial” zone of the city. Such businesses may operate only in “industrial” zones. The owner of an adult bookstore and video- rental operation in an area zoned “commercial” sued to prevent enforcement of the ordinance, claiming violation of his First Amendment speech rights. Assume that all of the terms of the ordinance are defined with sufficient specificity to avoid successful constitutional challenges based on vagueness. The court is likely to find for:

A. The city, because it may regulate speech- related activities to prevent offense to neighboring businesses and to city residents.

B. The owner, because the city is unconstitutionally regulating speech because of its content.

C. The city, because the ordinance serves a substantial government interest and does not unreasonably limit alternative avenues of communication.

D. The owner, because the city has not established that any of the products the owner offers are obscene.

A. The city, because it may regulate speech-related activities to prevent offense to neighboring businesses and to city residents. Preventing offense from speech is not a permissible state interest. This is overbroad because the First Amendment protects all sorts of speech—e.g. extremist political speech that people may find “offensive.”

B. The owner, because the city is unconstitutionally regulating speech because of its content. Some conduct-regulating speech is subject to regulation in service of preserving property values from the secondary effects of such businesses. City of Renton.

C. The city, because the ordinance serves a substantial government interest and does not unreasonably limit alternative avenues of communication. This is a candidate answer.

D. The owner, because the city has not established that any of the products the owner offers are obscene. Obscenity gets no constitutional protection, but government can constitutionally regulate the availability of non-obscene sexually explicit materials in service of an important government interest.

Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (footnote omitted): [U]nder the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Carnal Knowledge (1971) The film was a critical hit and a popular success, thanks to strong, unself-conscious performances, the discomforting intimacy and wit of Feiffer's script and the sharp observations in Nichols' direction. And the combination of frank sexual discussions, unnerving portraits of male behavior and (partially obscured) nudity by Ann-Margret made it quite the sensation in It was briefly banned in Italy. Some American newspapers refused to advertise the film because of the title. In Georgia, the operator of a movie house was convicted of distributing obscene material for showing the film and the case went up to the Supreme Court, which ultimately ruled that the film was not obscene.