FW/PBS, Inc. v. Dallas/Concurrence Scalia

Justice SCALIA, concurring in part and dissenting in part.

I join Part I of the Court's opinion, Part III, holding that there is no standing to challenge certain portions of the Dallas ordinance, and Part IV, sustaining on the merits certain other portions. I dissent from the judgment, however, because I would affirm the Fifth Circuit's holding that the ordinance is constitutional in all respects before us.

* Since this Court first had occasion to apply the First Amendment to materials treating of sex, some three decades ago, we have been guided by the principle that "sex and obscenity are not synonymous," Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 (1957). The former, we have said, the Constitution permits to be described and discussed. The latter is entirely unprotected, and may be allowed or disallowed by States or communities, as the democratic majority desires.

Distinguishing the one from the other has been the problem. Obscenity, in common understanding, is material that "treat[s] sex in a manner appealing to prurient interest," id., at 488, 77 S.Ct., at 1311. But for constitutional purposes we have added other conditions to that definition, out of an abundance of concern that "the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." Ibid. To begin with, we rejected the approach previously adopted by some courts, which would permit the banning of an entire literary work on the basis of one or several passages that in isolation could be considered obscene. Instead, we said, "the dominant theme of the material taken as a whole " must appeal to prurient interest. Id., at 489, 77 S.Ct., at 1311 (emphasis added). We have gone on to add other conditions, which are reflected in the three-part test pronounced in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973): "The basic guidelines for the trier of fact must be:     (a) whether 'the average person, applying contemporary      community standards' would find that the work, taken as a      whole, appeals to the prurient interest . . .;  (b) whether      the work depicts or describes, in a patently offensive way,      sexual conduct specifically defined by the applicable state      law;  and (c) whether the work, taken as a whole, lacks      serious literary, artistic, political, or scientific value."

These standards' immediate purpose and effect-which, it is fair to say, have met with general public acceptance-have been to guarantee the access of all adults to such works of literature, once banned or sought to be banned, as Dreiser's An American Tragedy, Lawrence's Lady Chatterley's Lover, Miller's Tropic of Cancer and Tropic of Capricorn, and Joyce's Ulysses, and to many stage and motion picture productions of genuine dramatic or entertainment value that contain some sexually explicit or even erotic material.

Application of these standards (or, I should say, misapplication of them) has had another effect as well-unintended and most certainly not generally approved. The Dallas ordinance at issue in these cases is not an isolated phenomenon. It is one example of an increasing number of attempts throughout the country, by various means, not to withhold from the public any particular book or performance, but to prevent the erosion of public morality by the increasingly general appearance of what the Dallas ordinance delicately calls "sexually oriented businesses." Such businesses flourish throughout the country as they never did before, not only in New York's Times Square, but in much smaller communities from coast to coast. Indeed, as a case we heard last Term demonstrates, they reach even the smallest of communities via telephonic "dial-a-porn." Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989).

While many communities do not object to such businesses, others do, and have sought to eliminate them. Attempts to do so by focusing upon the individual books, motion pictures, or performances that these businesses market are doomed to failure by reason of the very stringency of our obscenity test, designed to avoid any risk of suppressing socially valuable expression. Communities cannot close down "porn-shops" by banning pornography (which, so long as it does not cross the distant line of obscenity, is protected), just as Congress cannot eliminate specialized "dial-a-porn" telephone services by prohibiting individual messages that are "indecent" but not quite obscene. Id., at 131, 109 S.Ct., at 2839. Consequently, communities have resorted to a number of other means, including stringent zoning laws, see e.g., Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (ordinance adopting unusual zoning technique of requiring sexually oriented businesses to be dispersed rather than concentrated); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (ordinance restricting theaters that show "adult" films to locations comprising about 5% of the community's land area, where the Court of Appeals had found no "commercially viable" sites were available), Draconian sanctions for obscenity which make it unwise to flirt with the sale of pornography, see Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989) (state Racketeer Influenced and Corrupt Organizations (RICO) statute), and the ordinance we have before us today, a licensing scheme purportedly designed to assure that porn-shops are run by a better class of person. Not only are these oblique methods less than entirely effective in eliminating the perceived evil at which they are directed (viz., the very existence of sexually oriented businesses anywhere in the community that does not want them), but they perversely render less effective our efforts, through a restrictive definition of obscenity, to prevent the "chilling" of socially valuable speech. State RICO penalties for obscenity, for example, intimidate not just the porn-shop owner, but also the general bookseller who has been the traditional seller of new books such as Ulysses.

It does not seem to me desirable to perpetuate such a regime of prohibition by indirection. I think the means of rendering it unnecessary is available under our precedents and should be applied in the present cases. That means consists of recognizing that a business devoted to the sale of highly explicit sexual material can be found to be engaged in the marketing of obscenity, even though each book or film it sells might, in isolation, be considered merely pornographic and not obscene. It is necessary, to be sure of protecting valuable speech, that we compel all communities to tolerate individual works that have only marginal communicative content beyond raw sexual appeal; it is not necessary that we compel them to tolerate businesses that hold themselves forth as specializing in such material. Because I think that Dallas could constitutionally have proscribed the commercial activities that it chose instead to license, I do not think the details of its licensing scheme had to comply with First Amendment standards.

The Dallas ordinance applies to any sexually oriented business, which is defined as "an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center." Dallas City Code § 41A-2(19) (1986). Operators of escort agencies and sexual encounter centers are not before us.

"Adult bookstore or adult video store" is defined, inter alia, as a "commercial establishment which as one of its principal business purposes offers for sale or rental" books or other printed matter, or films or other visual representations, "which depict or describe 'specified sexual activities' or 'specified anatomical areas.' " § 41A-2(2)(A) (emphasis added). "Adult motion picture theater" is defined as a commercial establishment where films "are regularly shown" that depict specified sexual activities or specified anatomical areas. § 41A-2(5) (emphasis added). Other sexually oriented businesses are similarly defined as establishments that "regularly" depict or describe specified sexual activities or specified anatomical areas. "Specified sexual activities" means "(A) the fondling or other erotic touching of human     genitals, pubic region, buttocks, anus, or female breasts;

"(B) sex acts, normal or perverted, actual or simulated,     including intercourse, oral copulation, or sodomy;

"(C) masturbation, actual or simulated; or

"(D) excretory functions as part of or in connection     with any of the activities set forth in (A) through (C)      above." § 41A-2(21).

Finally, "specified anatomical areas" means "human genitals in a state of sexual arousal." § 41A-2(20).

As I shall discuss in greater detail presently, this ordinance is unusual in that it does not apply "work by work." It can reasonably be interpreted to restrict not sales of (or businesses that sell) any particular book, film, or entertainment, but only businesses that specialize in books, films, or entertainment of a particular type. That places the obscenity inquiry in a different, and broader, context. Our jurisprudence supports the proposition that even though a particular work of pornography is not obscene under Miller, a merchant who concentrates upon the sale of such works is engaged in the business of obscenity, which may be entirely prohibited and hence (a fortiori ) licensed as required here.

The dispositive case is Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). There the defendant was convicted of violating the federal obscenity statute, 18 U.S.C. § 1461, by mailing three publications which our opinion assumed, see 383 U.S., at 465-466, 86 S.Ct., at 944-945, were in and of themselves not obscene. We nonetheless upheld the conviction, because the evidence showed "that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering-'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.' " Id., at 467, 86 S.Ct., at 945 (quoting Roth v. United States, 354 U.S., at 495-496, 77 S.Ct., at 1314-1315 (Warren, C.J., concurring)). Justice BRENNAN's opinion for the Court concluded that the advertising for the publications, which "stressed the[ir] sexual candor," 383 U.S., at 468, 86 S.Ct., at 946, "resolve[d] all ambiguity and doubt" as to the unprotected status of the defendants' activities. Id., at 470, 86 S.Ct., at 947.

"The deliberate representation of petitioners' publications     as erotically arousing, for example, stimulated the reader to      accept them as prurient;  he looks for titillation, not for      saving intellectual content. . . .  And the circumstances of      presentation and dissemination of material are equally      relevant to determining whether social importance claimed for      material in the courtroom was, in the circumstances, pretense or reality-whether it was the basis      upon which it was traded in the marketplace or a spurious      claim for litigation purposes.  Where the purveyor's sole      emphasis is on the sexually provocative aspects of his      publications, that fact may be decisive in the determination      of obscenity.  Certainly in a prosecution which, as here,      does not necessarily imply suppression of the materials      involved, the fact that they originate or are used as a      subject of pandering is relevant to the application of the      Roth test." Id., at 470-471, 86 S.Ct., at 947.

We held one of the three publications in question to be, in the circumstances of its sale, obscene, despite the trial court's finding that only 4 of the 15 articles it contained "predominantly appealed to prurient interest and substantially exceeded community standards of candor," id., at 471, 86 S.Ct., at 947; and another to be obscene despite the fact that it previously had been sold by its author to numerous psychiatrists, some of whom testified that they found it useful in their professional practice. We upheld the convictions because the petitioners had "deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed." Id., at 472, 86 S.Ct., at 948.

In Memoirs v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), decided the same day as Ginzburg, we overturned the judgment that a particular book was obscene, but, citing Ginzburg, made clear that this did not mean that all circumstances of its distribution would be constitutionally protected. We said:

"On the premise, which we have no occasion to assess, that     Memoirs has the requisite prurient appeal and is patently      offensive, but has only a minimum of social value, the      circumstances of production, sale, and publicity are relevant      in determining whether or not the publication or distribution      of the book is constitutionally protected. . . .  In this      proceeding, however, the courts were asked to judge the      obscenity of Memoirs in the abstract, and the declaration of obscenity was neither aided nor limited by      a specific set of circumstances of production, sale, and      publicity.  All possible uses of the book must therefore be      considered, and the mere risk that the book might be      exploited by panderers because it so pervasively treats      sexual matters cannot alter the fact . . . that the book will      have redeeming social importance in the hands of those who      publish or distribute it on the basis of that value." 383     U.S., at 420-421, 86 S.Ct., at 978-979 (footnote omitted).

Ginzburg was decided before our landmark Miller decision, but we have consistently applied its holding post-Miller. See Hamling v. United States, 418 U.S. 87, 130, 94 S.Ct. 2887, 2914, 41 L.Ed.2d 590 (1974); Splawn v. California, 431 U.S. 595, 597-599, 97 S.Ct. 1987, 1989-1990, 52 L.Ed.2d 606 (1977); Pinkus v. United States, 436 U.S. 293, 303-304, 98 S.Ct. 1808, 1814-1815, 56 L.Ed.2d 293 (1978). Although Ginzburg narrowly involved the question whether particular publications were obscene, the foundation for its holding is that "the sordid business of pandering," Ginzburg, supra, 383 U.S., at 467, 86 S.Ct., at 945, is constitutionally unprotected-that the sale of material "solely to produce sexual arousal . . . does not escape regulation because [the material] has been dressed up as speech, or in other contexts might be recognized as speech." 383 U.S., at 474, n. 17, 86 S.Ct., at 949, n. 17. But just as Miller established some objective criteria concerning what particular publications can be regarded as "appealing to the prurient interest," it impliedly established some objective criteria as to what stock-in-trade can be the raw material (so to speak) of pandering. Giving this limitation full scope, it seems to me that Ginzburg, read together with Miller, establishes at least the following: The Constitution does not require a State or municipality to permit a business that intentionally specializes in, and holds itself forth to the public as specializing in, performance or portrayal of sex acts, sexual organs in a state of arousal, or live human nudity. In my view that suffices to sustain the Dallas ordinance.

In evaluating the Dallas ordinance under the principles I have described, we must of course give it the benefit of any "limiting construction [that] has been or could be placed" on its text. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Moreover, we cannot sustain the present facial attack unless the ordinance is "substantially overbroad," id., at 615, 93 S.Ct., at 2918 (emphasis added), that is, "unless it reaches a substantial number of impermissible applications," New York v. Ferber, 458 U.S. 747, 771, 102 S.Ct. 3348, 3362, 73 L.Ed.2d 1113 (1982), "judged in relation to the statute's plainly legitimate sweep," Broadrick, supra, 413 U.S., at 615, 93 S.Ct., at 2918.

Favorably construed, the Dallas ordinance regulates only the business of pandering, as I have defined it above. It should be noted, to begin with, that the depictions, descriptions, and displays that cause any of the businesses before us to qualify as a "sexually oriented business" must be sexually explicit in more than a minor degree. What is at issue here is not the sort of nude photograph that might commonly appear on a so-called "pin-up calendar" or "men's magazine." The mere portrayal of the naked human body does not qualify unless (in the definition of adult cabaret, adult theater, and nude model studio) it is featured live. Qualifying depictions and descriptions do not include human genitals, but only human genitals in a state of sexual arousal, the fondling of erogenous zones, and normal or perverted sexual acts.

In addition, in order to qualify for regulation under the ordinance the business that provides such live nudity or such sexually explicit depictions or descriptions must do so "as one of its principal business purposes" (in the case of adult bookstores and adult video stores) or "regularly" (in the case of adult motion picture theaters, adult cabarets, and adult theaters). The adverb "regularly" can mean "constantly, continually, steadily, sustainedly," Roget's International Thesaurus § 135.7, p. 77 (4th ed. 1977), and also "in a . . . methodical way," Webster's Third New International Dictionary 1913 (1981). I think it can reasonably be interpreted in the present context to mean a continuous presentation of the sexual material as one of the very objectives of the commercial enterprise. Similarly, the phrase "as one of its principal business purposes" can connote that the material containing the specified depictions and descriptions does not merely account for a substantial proportion of sales volume but is also intentionally marketed as material of that character.

All of the establishments at issue, therefore, share the characteristics that they offer (1) live nudity or hardcore sexual material, (2) as a constant, intentional objective of their business. But there is still more. With the single exception of "adult motion picture theater," the descriptions of all the establishments at issue contain some language that suggests a requirement that the business hold itself forth to the public precisely as a place where sexual stimulation of the described sort can be obtained. Surely it would be permissible to interpret the phrase "as one of its principal business purposes" in the definition of "adult bookstore or adult video store" to require such holding forth. A business can hardly have as a principal purpose a line of commerce it does not even promote. Likewise, the portion of the definitions of "adult cabaret" and "adult theater" which requires that they regularly "feature" the described sexual material suggests that it must not merely be there but must be promoted or marketed as such. The definition of nude model studio, while containing no such requirement, is subject to a defense which contains as one of its elements that the structure where the studio is located "has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing." Dallas City Code § 41A-21(d)(3)(A) (1986). Even the definitions of the two categories of enterprises not at issue in this case, "escort agencies" and "sexual encounter centers," contain language that arguably requires a "holding forth" (a "primary business purpose" requirement). Given these indications of the importance of "holding forth" contained in all except one of the definitions, it seems to me very likely-especially if that should be thought necessary to sustain the constitutionality of the measure-that the Dallas ordinance in all its challenged applications would be interpreted to apply only to businesses that not only (1) offer live nudity or hardcore sexual material, (2) as a constant and intentional objective of their business, but also (3) seek to promote it as such. It seems to me that any business that meets these requirements can properly be described as engaged in "the sordid business of pandering," and is not protected by the First Amendment. Indeed, even the first two requirements alone would suffice to sustain the ordinance, since it is most implausible that any enterprise which has as its constant intentional objective the sale of such material does not advertise or promote it as such; if a few such enterprises bent upon commercial failure should exist, they would certainly not be numerous enough to render the ordinance substantially overbroad.

The Dallas ordinance's narrow focus distinguishes these cases from Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), in which we held unconstitutional a municipal ordinance that prohibited all businesses offering live entertainment, including but not limited to nude dancing. That ordinance was substantially overbroad because, on its face, it prohibited "a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments." Id., at 65, 101 S.Ct., at 2181. The Dallas ordinance, however, targets only businesses engaged in unprotected activity.

Even if it were possible to conceive of a business that could meet the above-described qualifications and yet be engaged in First Amendment activities rather than pandering, we do not invalidate statutes as overbroad on the basis of imagination alone. We have always held that we will not apply that "strong medicine" unless the overbreadth is both "real" and "substantial." Broadrick v. Oklahoma, 413 U.S., at 613, 615, 93 S.Ct., at 2916-17, 2917-18. I think we must sustain the current ordinance just as we sustained the statute at issue in New York v. Ferber, supra, which forbade the distribution of materials depicting minors in a "sexual performance." The state court had applied overbreadth analysis because of its "understandabl[e] concer[n] that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute." Id., at 773, 102 S.Ct., at 3363. We said:

"[W]e seriously doubt, and it has not been suggested, that     these arguably impermissible applications of the statute      amount to more than a tiny fraction of the materials within      the statute's reach.  Nor will we assume that the New York      courts will widen the possibly invalid reach of the statute      by giving an expansive construction to the proscription on      'lewd exhibition[s] of the genitals.'  Under these      circumstances, § 263.15 is 'not substantially overbroad and .      . . whatever overbreadth may exist should be cured through a      case-by-case analysis of the fact situations to which its      sanctions, assertedly, may not be applied.'  Broadrick v.      Oklahoma, 413 U.S., at 615-616 [93 S.Ct., at 2917-2918]." Id., 458 U.S., at 773-774, 102 S.Ct., at 3363.

The legitimate reach of the Dallas ordinance "dwarfs its arguably impermissible applications." Id., at 773, 102 S.Ct., at 3363.

To reject the present facial attack upon the ordinance is not, of course, to deprive someone who is not engaged in pandering and who is somehow caught within its provisions (if that could possibly occur) from asserting his First Amendment rights. But that eventuality is so improbable, it seems to me, that no substantial quantity of First Amendment activity is anticipatorily "chilled." The Constitution is adequately safeguarded by conducting further review of this reasonable ordinance as it is applied.

Justice O'CONNOR's opinion correctly notes that respondents conceded that the materials sold are protected by the First Amendment. Ante, at 224. But they did not concede that the activity of pandering at which the Dallas ordinance is directed is constitutionally protected. They did not, to be sure, specifically argue Ginzburg, or suggest the complete proscribability of these businesses as a basis for sustaining their manner of licensing them. But we have often sustained judgments on grounds not argued-particularly in the area of obscenity law, where our jurisprudence has been, let us say, not entirely predictable. In Ginzburg itself, for example, the United States did not argue that the convictions could be upheld on the pandering theory the Court adopted, but only that the materials sold were obscene under Roth. Brief for United States in Ginzburg v. United States, O.T.1965, No. 42, p. 18. In Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966), one of the companion cases to Ginzburg, the State of New York defended the convictions under Roth and explicitly disagreed with those commentators who would determine obscenity by looking to the "intent of the disseminator," rather than "character of the material." Brief for Appellee in Mishkin v. New York, O.T.1965, No. 49, p. 45, and n. See also Brief for Appellee in Memoirs v. Attorney General of Massachusetts, O.T.1965, No. 368, p. 17 (defending convictions under Roth and Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962)). Likewise in Roth, where we held that the test for obscenity was appeal to prurient interest, 354 U.S., at 489, 77 S.Ct., at 1311, the United States had argued that obscenity was established if the material "constitutes a present threat to the morals of the average person in the community." Brief for United States in Roth v. United States, O.T.1956, No. 582, p. 100. And no one argued that the Miller Court should abandon the "utterly without redeeming social value" test of the Memoirs plurality, but the Court did so nevertheless. Compare 413 U.S., at 24-25, 93 S.Ct., at 2614-16, with Brief for Appellee in Miller v. California, O.T.1972, No. 70-73, pp. 26-27.

*  *   *

The mode of analysis I have suggested is different from the rigid test for obscenity that we apply to the determination whether a particular book, film, or performance can be banned. The regulation here is not directed to particular works or performance, but to their concentration, and the constitutional analysis should be adjusted accordingly. What Justice STEVENS wrote for the plurality in American Mini Theatres is applicable here as well: "[W]e learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached." 427 U.S., at 65, 96 S.Ct., at 2450. The prohibition of concentrated pornography here is analogous to the prohibition we sustained in American Mini Theatres. There we upheld ordinances that prohibited the concentration of sexually oriented businesses, each of which (we assumed) purveyed material that was not constitutionally proscribable. Here I would uphold an ordinance that regulates the concentration of sexually oriented material in a single business.

The basis of decision I have described seems to me the proper means, in Chief Justice Warren's words, "to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments." Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964) (dissenting opinion). It entails no risk of suppressing even a single work of science, literature, or art-or, for that matter, even a single work of pornography. Indeed, I fully believe that in the long run it will expand rather than constrict the scope of permitted expression, because it will eliminate the incentive to use, as a means of preventing commercial activity patently objectionable to large segments of our society, methods that constrict unobjectionable activity as well.

For the reasons stated, I respectfully dissent.