NEW YORK – In a case that reaches back to the days of Mayor Rudolph Giuliani and his campaign to eliminate adult businesses from Times Square (among other places in the city), this week the New York State Court of Appeals upheld the city’s ban on adult businesses operating within 500 feet of churches, schools, parks and other family-friendly locations.

As a practical matter, the terms of the ban prevent adult businesses from operating in just about any residential or commercial district, relegating such businesses to far-flung outskirts and industrial areas. The upholding of the ban may also spell the end of several adult businesses that long have been operating under the so-called “60/40 rule,” a standard set in a late 1990s court case allowing adult businesses to continue operating provided less than 40 percent of the businesses’ floor space was dedicated to adult material.

The ruling reportedly won’t impact some of New York’s existing gentleman’s clubs, like Scores, Rick’s Cabaret and the Hustler Club, because those clubs operate under a special class of adult entertainment licenses.

While the ruling is disappointing for New York’s remaining adult businesses, it can’t be described as entirely unexpected. Zoning is one area of the law that cannot be described as a level playing field.

Almost 20 years ago, an attorney in Arizona who had just mounted an unsuccessful challenge to the City of Tucson’s zoning regulations put it to me this way: “As an adult shop, fighting zoning restrictions isn’t just fighting an uphill battle. It’s fighting an uphill battle armed only with a plastic spoon while your enemy has an M-16.”

The reason for the immense disparity in the opposing parties’ relative positions of strength in a zoning battle boils down to the so-called “secondary-effects” doctrine, under which governments argue they aren’t trying to curtail adult entertainment due to the content of speech, but due to alleged side effects attributed to the presence of adult businesses.

The claim a law is designed not to restrict speech but to mitigate secondary effects is a crucial distinction, because laws that regulate speech are subjected to the standard of strict scrutiny, while “content neutral” statutes are evaluated under the far less rigorous standard of intermediate scrutiny.

In the Tucson case, the city asserted as fact that an adult bookstore was causing a spate of problems in the surrounding neighborhoods, including profligate drug dealing, numerous sexual assaults and several murders.

In examining data submitted as supplemental evidence to support the city’s position, the bookstore’s attorneys couldn’t help noticing most of the murders stemmed from a single incident: The deaths occurred in the parking lot of a nearby bar notoriously popular with self-proclaimed “outlaw bikers.”

If it sounds unlikely to you that a bunch of outlaw bikers got into a deadly fight because there happened to be an adult bookstore up the street a few blocks from the bar inside which they’d just been drinking, you’re not alone. Even the judge in the case allowed the murders were more likely related to the same conflict that caused the bikers in question to be tossed out of the bar in the first place.

Unfortunately, it didn’t matter whether the city’s data was bogus or misinterpreted, because under relevant case law, the city needn’t produce any evidence at all to support the fundamental claim adult businesses cause the sort of secondary effects the city asserts.

In the landmark case Young v. American Mini Theatres, the U.S. Supreme Court held the First Amendment “does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”

Let this sink in for a moment: whatever data the city “reasonably believes” to be relevant to the problems the city is trying to mitigate is automatically to be considered legally relevant by the court in the context of the case being heard, as well.

Facing a set of standards and precedents like this, it’s easy to see why attorneys representing adult businesses in zoning disputes feel like they’re the University of Louisiana-Monroe going on the road to face Ohio State in a football game … and then spotting the mighty Buckeyes three touchdowns before ever taking the field.

In the context of the recent New York decision, there’s a certain irony in the city’s victory: It will likely benefit the bottom line of the few adult businesses that remain, making them more popular and successful than ever before.

“If you have a market where there are 20 businesses and half go away,” said Ed Anakar, director of operations for Rick’s Cabaret, “that’s going to be a boost for the remaining participants.”

Here’s hoping, for the sake of Rick’s Cabaret and the patrons who love it, a biker bar doesn’t open shop at the corner of 6^th and 33^rd.

Image: Times Square’s infamous Show World Center adult megastore.