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Young v. American Mini Theatres, Inc.


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427 U.S. 50 (1976), argued 24 Mar. 1976, decided 24 June 1976 by vote of 5 to 4; Stevens for a plurality of the Court, Powell concurring, Stewart, Brennan, Marshall, and Blackmun in dissent. Although most legal questions about the control of sexually explicit material turn into questions about criminal prosecution and obscenity law, Young v. American Mini Theatres is the most important case on the issue of zoning of “adult” establishments, that is, businesses specializing in the sale of sexually oriented films, magazines, and other items sold only to adults. The case arose when the city of Detroit attempted, through zoning, to prevent concentrations of such businesses, although other constitutionally indistinguishable zoning approaches focus on concentration rather than dispersal of adult establishments.

The case's importance lies in the fact that the Detroit ordinance did not require a finding that the establishment dealt in legally obscene materials as a prerequisite to legal action. Under the then-existing doctrine of Erznoznik v. City of Jacksonville (1975), this would seem to have rendered the restriction impermissible, for all sexually oriented material not legally obscene was thought to be entitled to complete First Amendment protection. But Justice John Paul Stevens's plurality opinion held that some degree of content regulation within the First Amendment was permissible and that the regulation here was constitutional for three reasons. First, the material was so sexually explicit as to be entitled to less protection than other speech more central to the First Amendment; as Stevens wrote, “[F]ew of us would march our sons and daughters off to war to preserve the citizen's right to see ‘Specified Sexual Activities’ exhibited in the theaters of our choice” (p. 70). Second, the zoning restriction was not a total prohibition on the availability of the material. Third, the material would be considered highly offensive by many people.

These conclusions, which represent current law (as in City of Renton v. Playtime Theatres, Inc., 1986), remain especially important because they have been the basis for a number of other restrictions that fall short of outright prohibition of sexually explicit but nonobscene communication, such as Federal Communications Commission v. Pacifica Foundation (1978), and because they represent the beginnings of the increasingly influential First Amendment approach of Justice Stevens, in which distinctions among forms of constitutionally protected speech are permissible depending on the offensiveness of the material and the form of the restriction.

Frederick Schauer

Subjects: Law.


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