Let’s say you’re a socially conservative state legislator (or, more to the point, a legislator who represents a district packed with social conservatives) and you want to cook up some regulations designed to make it harder for people to sell, buy, or consume adult entertainment in your area. What can you do to get around that pesky First Amendment, which has somehow been interpreted by various courts as protecting naughty, awful stuff like porn, exotic dancing and similar filth?
I’ll tell you what you do: You turn to your old friend, the “secondary effects” doctrine.
What is the secondary effects doctrine, you might ask, aside from the worst-ever potential name for a rock band?
As Marcy Strauss puts it in the article linked above, the “court applies the doctrine if it finds that the regulation of speech is aimed at the ‘secondary effects’ of the speech and not at the content of the speech itself.”
“Under the doctrine, a court may treat a seemingly content-based speech regulation, which normally is entitled to strict scrutiny, as a content-neutral regulation, and thus apply the less rigorous intermediate scrutiny,” Strauss writes. “Because content-based regulations are rarely upheld under strict scrutiny and content-neutral regulations are much easier to sustain, the application of the secondary effects doctrine may determine whether a law is constitutional.”
In other words, the secondary effects doctrine is a terrific way for legislators to dodge the First Amendment along the way to imposing restrictions on things like adult bookstores, strip clubs and other businesses of which they don’t approve (or of which they want to appear to disapprove, at least).
With many state legislatures around the country set to return to work in a matter of days, the secondary effects doctrine is once again being put to use in “defense of community standards.” I put that last phrase betwixt quotation marks because it happens to be the name of a bill pending in New Jersey – the “Defense of Community Standards Act.”
“Sexually oriented businesses require special supervision from the public safety agencies of this State in order to protect and preserve the health, safety, morals and welfare of the patrons, contractors and employees of these businesses, as well as the residents of the State,” states a nice little paternalistic chunk at the start of the bill. “There is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them and contribute to increased crime, particularly in the overnight hours, and the downgrading of property values.”
So, you see, while part of the goal here is to protect and preserve the “morals” of anyone who might wander by the vicinity of a porn shop, the New Jersey legislature isn’t trying to regulate the content of the speech; they’re just trying to mitigate those “deleterious” secondary effects.
Meanwhile, in Kansas, the same secondary effects are the reason why the state senate thinks “sexually-oriented businesses” should be required to pay a fee of $5 “for each entry by each customer admitted to the business.”
You’ll never guess why this fee is being imposed – because if you’ve been reading this post up to this point, you don’t need to guess.
“The purpose of the fee on sexually oriented businesses is in order to promote the health, safety and general welfare of the citizens of Kansas and to mitigate the deleterious secondary effects of sexually oriented businesses within the state.”
No shit? So, it’s not about the content of the expression provided in the performances and products found within these “sexually oriented businesses”?
“The provisions of this act have neither the purpose nor intent of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials,” the legislature assures us. “Similarly, it is neither the purpose nor intent of this act to restrict or deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. This fee is content neutral and substantially unrelated to suppression of speech with its predominant concern being the secondary negative impacts.”
I don’t know about you, but I’ll sleep better tonight knowing that legislatures around the country are trying to protect me from the deleterious secondary effects of sexually oriented businesses. It’s also heartening to know that the same people who have declared porn to be a “public health hazard” aren’t trying to restrict or deny my access to the stuff that’s ruining me, our communities and life itself; they’re just trying to keep my property values from falling, so that when my inevitable porn-caused divorce happens, the value of my ex-wife’s share will be duly maintained.
“Love” photo by Ylanite Koppens from Pexels
