Vice Squad
Thursday, April 19, 2007
Seconds on Secondary Effects

A couple days ago Vice Squad mentioned the "secondary effects" analysis that is the dominant strain in the body of US Constitutional law relevant for erotic dancing. The secondary effects are unhappy developments, including increased crime and lower property values, that might arise in the vicinity of an adult-oriented establishment. They serve as a basis for justifying, in a constitutional sense, some restrictions on the nature of adult-oriented activities that are permitted.

In California, purported secondary effects are being put to a new use, an attempt to justify a tax aimed specifically at the porn and adult entertainment industries. The proceeds of the proposed tax are earmarked for programs that combat crime.

The folks at Adult Video News are not impressed by the pending bill (as always with AVN, the link is not work-safe), calling it "a clearly unconstitutional attempt to selectively tax speech on the basis of its content." I agree with their characterization. The Supreme Court's secondary effects analysis is only applicable for controls upon speech that are deemed to be content-neutral, that would apply just as well to political speech as to commercial speech as to any other type of speech. It is a stretch to label a nude dancing ban (or, for instance, a G-string requirement) as content neutral, but that stretch is now established law. A tax on adult-themed enterprises is much broader than a nude dancing ban, and as it doesn't seem to apply to any other types of businesses that might spur crime or lower property values, seems on its face to be a content-based restriction on speech. And these sorts of restrictions must pass a higher bar to be consistent with the Constitution -- a bar placed so high that few restrictions can clear it.

There's a nice post from October 2006 concerning the jurisprudence around secondary effects on a blog entitled "talkbacknorthampton," which has many interesting posts defending free speech.

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