Warren E. Burger: We will hear argument this morning in The City of Renton, et al. v. Playtime Theatres, Inc., et al. Mr. Prettyman, I think you may proceed whenever you're ready.
E. Barrett Prettyman, Jr.: Mr. Chief Justice, and may it please the Court: This case, which comes here from the Ninth Circuit, involves an attempt by a small city in the State of Washington to zone adult theatres away from residence, churches, parks and schools. You'll recall that in 1976 in Young <v@l> [= v.] American Min Theatres, you upheld a Detroit ordinance which treated adult theatres differently than general fare theatres because of the adverse secondary effects caused by the adult theatres. The City of Renton's attempt began more than a year before any adult theatres had actually come into the city, but the secondary effects of these theatres had been perceived nearby in the State of Washington, in the City of Tacoma, in the City of Spokane, and just a mile to the north in the City of Seattle, which had had its own case which had gone through the state supreme court. This Court had denied certiorari. The zoning ordinance in that case has been upheld. Renton wanted to deal with this problem before it became a problem. It wanted to obviate these secondary effects before they ever got into the city, because, quite candidly, some other cities, as a result of Young, had attempted to deal with specific situations in front of them, and those ordinances had been struck down. So, Renton, during the following year, the City Council, through its committees studied what had happened in other cities. It looked at the opinions that had come down in other places; not just in the State of Washington but in other cities as well. It held a number of meetings. These were public meetings. In some of them it listened to citizens voice their concerns. These citizens were not only from Renton but from some from nearby cities. And it finally passed one of three ordinances. The first ordinance prohibited the location of adult theatres within 1,000 feet of residences, of single or multi-family dwellings, churches, or parks. As to schools, this first ordinance provided that adult theatres could not be located within a mile of these schools. That was later reduced in the second ordinance to 1,000 feet. After the first ordinance was passed, Appellees, whom i'll call Playtime, brought a suit in Renton seeking declaratory judgment and an injunction based on their First Amendment rights anti equal protection. And they shortly thereafter, virtually within the same week, brought two existing general fare theatres in downtown Renton, in one of which they said they intended to show adult fare on a regular basis. The result of our second ordinance, when you drew circles around the areas that these theatres could not locate next to, in effect created a permissive or set-aside zone in the City of Renton which consisted of some 520 acres. This is, incidentally, a larger area than the entire commercial area of the City of Renton, and it is more acres than all of the multi-family residences in the City of Renton. The district court said that--
William H. Rehnquist: Now many square miles in the--
E. Barrett Prettyman, Jr.: --Pardon me?
William H. Rehnquist: --How many square miles in the city?
E. Barrett Prettyman, Jr.: It's 15.3 square miles, Your Honor.
William H. Rehnquist: And 520 acres would be somewhat less than a square mile.
E. Barrett Prettyman, Jr.: Yes, sir. It's enough for over 400 theatres. That's undisputed by the other side, Your Honor, including parking lots.
Sandra Day O'Connor: Does the record show us whether the City considered the commercial suitability of the 520 acres that were set aside for adult theatre usage?
E. Barrett Prettyman, Jr.: The City's real concern was with their being too close to the prohibited areas, and I think it's fair to say that the record does not reflect a concern as to precise--
Sandra Day O'Connor: As to the suitability of the property that was available for that.
E. Barrett Prettyman, Jr.: --Except to this extent, Your Honor. Mr. Clemmons, our policy development director, who had been with the City for a number of years and was thoroughly familiar with the City, was constantly advising these committees of the City Council, and consequently I assume that he knew and was advising them about the nature of the area that was left over. The City... Renton is a small enough city so that the City Council is, I think, thoroughly familiar--
Sandra Day O'Connor: Is that part of any required consideration, do you think, to uphold the validity of a zoning regulation?
E. Barrett Prettyman, Jr.: --Let me put it this way, Justice O'Connor. I think that if the set-aside zone was entirely, totally unsuitable to the extent of being unavailable... If I can use an extreme example, if it was an island with no bridge that you had to swim to to get to your adult theatre, I think that would be very quite relevant. But I think where the Ninth Circuit went wrong was in saying that just because this area is largely undeveloped or is in the state of development and has commercial ventures on it now, that--
Sandra Day O'Connor: Well, is it relevant that the City at least consider it as part of the calculus, do you think--
E. Barrett Prettyman, Jr.: --It seems--
Sandra Day O'Connor: --so that deference could be given to it if has considered.
E. Barrett Prettyman, Jr.: --It seems to me that what you look at is what results. You don't look at whether, you look at whether the City had a legitimate right to do what it did; then you turn around and look, well, what is the result? Do you have a Schad situation where they had, in effect, excluded them from the City? Or do you have an area for over 400 theatres that's developing, in the state of development that they can easily go into?
Harry A. Blackmun: What was the situation here? You speak goodly, if I may say so, of 400 theatres, and yet a lot of this area was already industrialized, was it not?
E. Barrett Prettyman, Jr.: Uh, only part--
Harry A. Blackmun: Were there more than three sites available?
E. Barrett Prettyman, Jr.: --Oh, yes. Oh, absolutely, Your Honor. I think what you may be thinking of is the other side sent a gentleman out to the zone, and he could find only three people who said that, in effect, they'd be willing to sell, but there are far more than three sites available. Over half of this land is undeveloped. It is just sitting there.
William J. Brennan, Jr.: In other words, there were no theatres in that area.
E. Barrett Prettyman, Jr.: Absolutely not. There were no theatres there.
William J. Brennan, Jr.: And how far from that area were the two theatres that Playtime acquired?
E. Barrett Prettyman, Jr.: Your Honor, if I can show this to you visually, if I may impose upon you to look at page 141a of the Appendix to the jurisdictional statement.
William J. Brennan, Jr.: What page?
E. Barrett Prettyman, Jr.: 141a. It is called Exhibit U. You will see the set-aside zone in grey, here, in the heaviest color, and you will see running east-west, just north of there, a very heavy line which is Route 405. If you follow Route 405 up north where it crosses the light east-west line at the top, or where the Renton and Roxy Theatres were located, those were the two that they bought. Those are only, really, probably ten minutes from the northern edge of the permissive zone. There is another theatre just south of that, between the set-aside zone and the Renton and Roxy Theatres, and they're the only three sets of theatres in the City of Renton. The Renton Cinema actually has three screens, so there are five screens altogether, but there are only three theatres in the City at the present time.
Thurgood Marshall: Mr. Prettyman, on your question about access, how do you put movie, drive-in movies, into that argument?
E. Barrett Prettyman, Jr.: I think you--
Thurgood Marshall: They have as much access as a drive-in movie.
E. Barrett Prettyman, Jr.: --Yes, well, I think clearly if drive-in movies were going to show adult films that this would be an excellent place for them to be, because this is extremely accessible. You're got entrances on most sides of this set-aside zone. You've got highways nearby, and I think, Justice Marshall, if you want any indication of how far people will go to see these movies, let me give you the example of Point Roberts, which is a small city. It looks like it really ought to be part of Canada. It's kind of hanging off the edge, there, but it's actually part of the State of Washington. It has a year-round population of 250 people, and you know how many patrons they have a week at that adult theatre which is also owned by Playtime? Fifteen hundred. And where do they come from? They come primarily from Vancouver, which is 36 miles away. Now, we're talking about a set-aside zone in Renton which is just a matter of a few miles from the outer edges of the City. You're talking about, from the most northern edge of the City, you're probably talking twenty minutes, maybe ten, fifteen minutes from downtown. And here is a zone which is easily accessible, as the district court held. It's criss-crossed by streets and highways. It is now well lit, and it is, in my view... I was just out there ten years ago. It seems to be sort of the coming area of the city; the next area, if you will, that's going to be, that's going to be built up. It seems to us that there are three, basically three issues here, and that the Ninth Circuit was wrong on all three. The first issue really relates to whether we are allowed, we're allowed to look at the experience of other cities in passing this ordinance, and the Ninth Circuit said that we could not.
Sandra Day O'Connor: In that regard, Mr. Prettyman, the ordinance of this City was justified on the secondary effects that these theatres have on particular other land uses, like residence land or churches or schools. Now, does the record show us whether the City relied on evidence of that sort gathered in other cities?
E. Barrett Prettyman, Jr.: Well, I think the mast obvious example is the City of Seattle, where Seattle was... Seattle had 13 adult theatres. Ten of them were downtown; three were out in residential areas, and they were the three that they were concerned about. One of them was all by itself in a residential area, and Seattle passed its zoning ordinance in order to get all of them into a kind of bad area right downtown rather than out near residences, and so we were looking at that example. I might also say in regard to Young--
Sandra Day O'Connor: And did Seattle's studies show the secondary effects of having an adult theatre in a residential neighborhood?
E. Barrett Prettyman, Jr.: --Yes, ma'am, they did. They showed that, that they caused transience to come in. They showed an increase of crime, and they showed, in effect, that property values would go down. One of the things that I think people forget when they look at Young is everybody concentrates on the fact that the prescription was 1,000 feet from any two other adult uses. What they forget is that in the Young ordinance, it also prohibited adult theatres within 500 feet of residences, and that particular prescription wasn't even fought in this Court, I assume, because it was assumed to be, assumed to be constitutional. But that was part of the Young ordinance, and we had that to look to, and therefore ours is really a tighter and more permissive ordinance in that respect than--
William H. Rehnquist: Detroit and Seattle were doing it two different ways; Detroit by dispersal and Seattle by concentration?
E. Barrett Prettyman, Jr.: --Yes, that's exactly right. And different cities have used different methods. This Court said in Young that it made no difference, really. In fact, you approved both methods, both the dispersal method and the concentration method. You specifically said that in Young, and as a matter of fact you even said that that was true as to theatres in general, that they could be dispersed; that, in other words, the way that you deal with the problem is constitutionally irrelevant. So, our point in regard to whether we could rely on the experience of other cities is very simple, and that is, what was there for us to study? They weren't in there yet. We weren't dealing with one theater or twenty theatres. What we were saying, in effective land use planning, which is what zoning is all about, we were saying when they come in here, whether it be one or forty, we're going to want them away from our residences and churches and parks and schools. Let me tell you that Renton is an interesting town in this respect, because it doesn't have this commercial area over here and the churches over here and the residential area over here. It's all mixed up together, so that right downtown, right in the same block with these two theatres that Playtime has bought, are residences, and two little churches as a matter of fact. The record does not show that, let me make clear. That is outside the record, but it just happens to be true, and I am sure Mr. Burns will not dispute it. But in the same block as these two theatres are residences and two little churches, and with the high school just two blocks away.
John Paul Stevens: Mr. Prettyman, can I interrupt you with something that's troubling me--
E. Barrett Prettyman, Jr.: Certainly.
John Paul Stevens: --about the case? Did the court of appeals, in the words of the jurisdictional statute, hold the ordinance invalid, in your view? I'm just wondering if we have an appellate jurisdictional question.
E. Barrett Prettyman, Jr.: Oh, I don't think that, sir, that's there's any question that they held it in violation of the First Amendment. They--
John Paul Stevens: They sent it back for allowing to shore up the record, in effect.
E. Barrett Prettyman, Jr.: --Well, that was rather strange. The reason, if they are sending it back, they are sending it back because they thought that a motivating factor, at least there was an inference that a motivating factor might be that we were trying to suppress First Amendment rights. Our response to that is twofold. First of all, Your Honor, why are you looking at intent or motive in a case where you have a substantial government interest and only an incidental restriction on First Amendment rights. You didn't do it in Young, although there was a suggestion there that there might have been a bad motive. You refused to do it in O'Brien, even though that was clearly argued that they had a bad motive, so you never get to--
John Paul Stevens: I understand your argument on the merits of the motive, but if that issue remains open, is it clear that they have already directed the district judge to hold the ordinance invalid?
E. Barrett Prettyman, Jr.: --Oh, I think that's quite clear, Your Honor, that they have said that it is, that it violates the First Amendment.
John Paul Stevens: And is there... I see.
E. Barrett Prettyman, Jr.: Yes, absolutely. Passing on, then, let me simply say in regard to, I believe I have mentioned that the second issue relates to the set-aside zone itself; the nature and content of this zone. And let me just read you what the district court said about that, because I think it goes directly to this question. This consists of acreage in all stages of development from raw land to developed, industrial, warehouse, office and shopping space. It is criss-crossed by freeways, highways and roads. I think that is the nature of this zone, and I think that that should be perfectly permissible for First Amendment purposes. He also--
Sandra Day O'Connor: Mr. Prettyman, do you think that the Court has to analyze this statute under the O'Brien factors?
E. Barrett Prettyman, Jr.: --Justice O'Connor, let me say this as to that. As you know, the plurality in Young declined to do that, and put the secondary, these adult theatres in a kind of secondary status, sort of on a level, if you will, with commercial... and that Justice Powell, who wrote the opinion that made the difference in the result, refused to do that and adopted the O'Brien test. Quite candidly, the reason that we have not taken a position is that it seems to us that it really doesn't make any difference in the result in our case which way you go, because the result is the same. If you asking me, however, what I would like to see?
Sandra Day O'Connor: I am asking. [Laughter]
E. Barrett Prettyman, Jr.: All right. I thought you were, Justice O'Connor. I would say, quite candidly, that it seems to us that the plurality view more neatly fits the particular problem at hand. O'Brien, after all, was a criminal case, and the four-part test developed in that case, it has been used in a variety of circumstances, and we are happy with it if you want to apply it here. But it seems to us that the plurality really goes directly to secondary theatres. It talks about the fact that these are showing films which, in a separate case in the state court right here in Renton in an abatement action, have been held to meet the Miller test; and, therefore, there's a real question in our minds as to whether, as Justice Stevens said, you're going to march your sons and daughters off to war to protect these kinds of films. And it seems to us that these are films that perhaps because of the secondary effects caused by the theatres that they're played in, do not deserve the high degree of protection that other types of speech do.
Sandra Day O'Connor: If O'Brien factors were applied, one of them is a requirement that the governmental interests be unrelated to the suppression of free speech.
E. Barrett Prettyman, Jr.: Correct.
Sandra Day O'Connor: And how would you apply that here?
E. Barrett Prettyman, Jr.: I don't think that that means that you go back and interrogate the City Council members about what their intent is. As a matter of fact, the Ninth Circuit itself has held in the Foley case, that you can't do that. If we had a remand here, we can't, nobody can go back and subpoena and take the depositions of the City Council members and determine what they thought, and of course we don't think you should. So, I don't think it means that. I think what it means... you see, we put the emphasis on interest, the government interest must be unrelated. And the governmental interest in this case is clearly a proper one; namely, to make sure that these adverse secondary effects do not impact upon residences and churches and so forth. That is the interest, I think, that is involved, and that is wholly unrelated. We recognize in our findings, there is a finding which the City Council entered which says specifically that these theatres have a right to operate.
Byron R. White: Well, it isn't, it can't be literally true that it's unrelated, because at least in order to avoid the secondary effects, you are forbidding, you are forbidding these constitutionally protected kinds of speech to... you're making them move.
E. Barrett Prettyman, Jr.: It's unrelated to the suppression of speech and what the, what the--
Byron R. White: It's only because they're a speech of a certain kind that you're making them move.
E. Barrett Prettyman, Jr.: --I'm sorry, Your Honor, but it's not because of that. It's because of the secondary effects. It's because of what's--
Byron R. White: Well, the only reason the secondary effects will occur is because of the nature of the speech.
E. Barrett Prettyman, Jr.: --Well, I'm not--
Byron R. White: Isn't that right?
E. Barrett Prettyman, Jr.: --It is related. The secondary effects are related in a sense that these kind of films do apparently draw transience, that they do apparently create more crime, so in that--
Byron R. White: All right--
E. Barrett Prettyman, Jr.: --sense, it is related, but--
Byron R. White: --Yes, of course it is, but that shouldn't make any difference to your case.
E. Barrett Prettyman, Jr.: --It didn't make any difference in Young.
Byron R. White: That's right.
E. Barrett Prettyman, Jr.: It certainly didn't. Absolutely. Let me just say that I've indicated that you shouldn't really reach the issue of intent, and I would certainly hope that you wouldn't, but if you do I hope that you will reach it on the basis of the City Council's findings and not kind of get into some kind of subjective inquiry into what the City Council might have had in mind. Let me just say one other thing, and then I will reserve my time. Small cities like Renton are dealing with a very serious problem here, and they have been largely unsuccessful in doing it. These adult theatres are proliferating. They are moving into areas unlike what they used to, sort of out on the edges or perhaps right in the middle of downtown. They're going all over now. And we have made a good faith attempt that was not directed toward a single theatre, which sometimes the case. A theatre moves in and we say, we're going to get that theatre. We didn't do that. We, we, we wanted to deal with the problem in advance, and we submit to you it was a good faith attempt, and we have left plenty room, room that's more than commodious enough for these theatres to come into. It's easily accessible. And I submit to you that if this effort fails, that it will really prevent small cities and towns across the country from dealing in an intelligent fashion ahead of time with this very serious problem.
Byron R. White: You said there were three questions, three issues in the case. Have you discussed them all?
E. Barrett Prettyman, Jr.: I hope I have, Your Honor. Well, the first one--
Byron R. White: --the other two?
E. Barrett Prettyman, Jr.: --The first one related to whether we can rely on the examples of other cities.
Byron R. White: What are the other two?
E. Barrett Prettyman, Jr.: The second related to the nature of the set-aside zone itself, and the third related to the motive of the City Council.
Byron R. White: Okay, thank you.
E. Barrett Prettyman, Jr.: Thank you.
Warren E. Burger: Mr. Burns?
Jack R. Burns: Mr. Chief Justice, may it please the Court: This Court's decisions allow regulation of an adult business whose operational characteristics produce some identifiable secondary effect. In other words, is there, is the form of speech intrusive in, to some extent? Is it too loud; is it too ugly? We're talking, essentially, about a secondary effect that we can see, touch, hear or feel. In other words, is the mode incompatible with the zone that we're dealing with? Renton's ordinance, on the other hand, is related solely to perceptions about the effects of the content of the speech. It's not related to land use concerns. It's aimed at the speech and not at the style of the speech.
Warren E. Burger: Well, Mr. Burns, is it not more accurately the kind of people it attracts?
Jack R. Burns: Your Honor, there is no evidence in this record that this kind of speech attracts any other kind of people than the people that are in this courtroom. There's nothing in this record that establishes that it attracts an adverse kind of people or anybody other than the general public that is making itself or desires to make adult material available to--
Warren E. Burger: What you're saying is that we cannot take traditional notice of the contrary?
Jack R. Burns: --Well, Your Honor, I think that we have to look to what this Court said in Young, in that certain things are not, are not, we just can't assume that they exist as a matter of experience. The only thing that this Court found as a matter of experience that they could rely on in Young was that congregating various types of uses together produced a detrimental secondary effect, and that effect was a deterioration of property values. But I think you have to look at what happened in Young. There, you had an ordinance that had been in place for years. It regulated many kinds of uses, and what Young did, or Detroit did, was they added adult theatres to those regulated uses, and said these uses, all of them as a whole, when they congregate together, they produce this adverse secondary effect of a deletion in property values. That is not the case here. What this ordinance does and what Renton has done is said that a single adult theatre in a commercial zone, not in regard to other businesses that may be regulated or may not be regulated, because it doesn't regulate any other kind of business, that that single adult business will cause these deleterious effects.
William H. Rehnquist: Well, Mr. Burns--
Jack R. Burns: Yes, sir?
William H. Rehnquist: --Mr. Prettyman said that the City of Renton was entitled to rely on the City of Seattle's experience, and he said that a Seattle study had shown that adult theatres in residential areas produced, you know, transience, crime, that sort of thing. Do you say there was no such Seattle experience, or that the City of Renton might not rely on that Seattle experience if that was Seattle's experience?
Jack R. Burns: Your Honor, I take exception to his description of what the experience of Seattle was.
William H. Rehnquist: Well, first of all, do you contend that the City of Renton was not entitled to rely in drafting its ordinance on whatever experience the City of Seattle might have had?
Jack R. Burns: Your Honor, if the City of Renton is going to rely on Seattle's experience, it should target the same evils at which Seattle targeted its ordinance, and it should rely on the same means. It should not be able to say--
William H. Rehnquist: Why is that so? I mean, if a Seattle study shows particular facts flowing from the location of an adult theatre, why can't the City of Renton say, we don't like these facts to exist in certain zones in our city. We're going to go at it differently than Seattle, however.
Jack R. Burns: --Your Honor, I think it's risky to rely on the experience of other cities for a number of reasons.
William H. Rehnquist: Well, it's sufficiently risky so that the Constitution forbids Renton from doing it?
Jack R. Burns: Absolutely, because what we do then, if you allow a city such as Renton to pick the City of Seattle or pick the City of Tacoma and say, they passed an ordinance, we are going to mimic it, we are going to rely on it, you have effective immunized and sanitized that ordinance from judicial scrutiny, even though the reasons may be painfully fabricated; even though the reasons that they assert may not apply in their city. Because I would submit to this Court that--
John Paul Stevens: Mr. Burns, if your opponent is right... I haven't read this, the Washington case, but he said that in the Seattle experience there was one theatre out in a residential neighborhood, and that that was a bone of contention, and that would be a comparable example, wouldn't it?
Jack R. Burns: --No, it wouldn't, Your Honor. As I recall, there were three theatres out in residential neighborhoods that were affected by--
John Paul Stevens: But they were separated from one another.
Jack R. Burns: --Pardon me?
John Paul Stevens: He indicated they were separated from one another, so you might have a residential neighborhood with one theatre in it, and they said you have to move that theatre.
Jack R. Burns: That's true, but what they did in Seattle was different than what Renton did here. Seattle moved all the adult theatres--
John Paul Stevens: But just to the point of whether there is anything on which they could base concern about a single theatre, at least that would be some evidence, wouldn't it?
Jack R. Burns: --But, Your Honor, it may be some evidence, but I think we have to look to the issue that we have to solve these problems that deal with First Amendment concerns by the least intrusive means. You do not take a sledge hammer when a scalpel will do. The experience of Seattle is different--
John Paul Stevens: So, for that argument you basically ask us to re-examine Young, don't you?
Jack R. Burns: --No, I'm not asking you to re-examine Young, because I think that this case is--
Byron R. White: But you did--
Jack R. Burns: --different than Young. Well, I did to the extent that it's a time, place or manner restriction, but on the basic facts I'm not asking you to re-examine Young. I think that this case can be decided within the confines of Young. But I don't think this is a Young case.
Byron R. White: --What are the confines of Young on the standard you resort to?
Jack R. Burns: Your Honor, the Young case, as I read it, is, as I read Justice Stevens' opinion, is that if there is a demonstrable adverse secondary effect that we can see and we can touch and we can feel, the City can be concerned about that and regulate it by the least intrusive means. In Young, the Court made its decision based upon the fact that there were a myriad of locations available, that there were locations available in all kinds of zones, all commercial zones. The Renton ordinance specifically removes adult theatres from all commercial zones of the City of Renton. They simply are not allowed in the commercial zones. If, I think in that respect a look at the map is useful. If you would look at the last page of the jurisdictional statement, which is page 142a, Appendix V, you can see where these theatres have been relegated to. It's essentially an industrial wasteland. There are undeveloped areas. There's a tank farm. It's criss-crossed with railroad spurs. It is essentially--
William H. Rehnquist: Is that such an unlikely location for, say, a drive-in theatre?
Jack R. Burns: --It would, because a drive-in theatre probably would not be permitted in that zoning. Essentially, the drive-in theatre business in this country in commercial areas--
William H. Rehnquist: But I thought we took it as stipulated that an adult theatre was permissible. Are you saying that an adult self-contained theatre would be admissible but perhaps a drive-in theatre not?
Jack R. Burns: --It's in the record below that there would be a zoning change required in order to locate an adult theatre in this area. These are permissible locations, but that doesn't mean that the zoning is appropriate.
William H. Rehnquist: But you say it's an industrial wasteland. Do you insist that there be a theatre building in existence for you to come in and rent?
Jack R. Burns: No, Your Honor, but I think access has three components. Those components are, first, permissible locations; secondly, that those locations, that there be available locations to go to; and thirdly, that there be suitable locations for a commercial business such as a theatre.
William H. Rehnquist: Well, what do you mean by an available location?
Jack R. Burns: Your Honor, if the City is going to regulate and restrict where a theatre can locate, and in fact nobody will sell or rent property to a theatre, the restriction and burden on speech has become substantial, not incidental, because there is no place that they can go.
William H. Rehnquist: Well, would that entitle a theatre to locate out of a commercial zone and in a residential zone because no one in a commercial zone would sell them theatre space?
Jack R. Burns: No, Your Honor.
William H. Rehnquist: Well, why wouldn't it under your reasoning?
Jack R. Burns: It wouldn't because if, if a general audience theatre were permitted to locate in a residential zone, then it's my position that an adult theatre should be allowed to locate there as well unless you can demonstrate that there's some adverse secondary effect that arises out of the operation of the adult theatre that does not arise out of the operation of the general release theatre.
William H. Rehnquist: Well, how about the transience and crime from the Seattle study?
Jack R. Burns: Your Honor, the City of Renton didn't look at any data from Seattle. The record is clear that all the planning director and the City Council looked at with respect to the City of Seattle was the decision of our state supreme court.
William H. Rehnquist: Well, did the City of... did the decision of your state supreme court summarize findings that had been made in Seattle?
Jack R. Burns: Yes, it did.
William H. Rehnquist: Well, why on Earth shouldn't they be able to look at the supreme court opinion as a secondary source? Are you going to require the best evidence rule?
Jack R. Burns: Your Honor, when we're looking at speech, I think that we need to have empirical evidence that's of a compelling nature. We can't rely upon hearsay, opinion--
William H. Rehnquist: Now, that's a nice sounding phrase, but how would you define empirical evidence that's of a compelling nature, as opposed to just garden variety evidence?
Jack R. Burns: --Your Honor, in a commercial zone, what is the problem that transients cost... cause? Let me ask that as a rhetorical question. That, the major problem that I see with the findings in the Renton ordinance is that they're assertions. They're conclusions. They're simply assertions of harm that may not, in fact, exist. And if transients cause a problem, what kind of problem is it that they cause? There's no indication in this record of any sort what kind of problems a transient would cause. Now, if a transient causes problems, let's deal with those problems in some specific way. If it--
William H. Rehnquist: Provide them with bus tickets?
Jack R. Burns: --Pardon me?
William H. Rehnquist: Provide them with bus tickets? [Laughter]
Jack R. Burns: That may be one answer to the problem, but I think that this Court's decision required that when we're dealing with First Amendment concerns, we have to deal with the problem in the least intrusive way. If you had, as I think Justice Blackmun said in Schad, if there's a problem with traffic, deal with the traffic problem. If there's a problem with signage, deal with the signage problem, but do not simply relegate these theatres out to this uncommercial area in the guise of meeting a land use concern. What essentially they're getting at here is a censorship concern.
Warren E. Burger: You said something that I'm not sure I understand. It's about what the members of the City Council were thinking; what influenced their opinions. Is it not reasonable to assume that the members of any city council in a particular state know what's going on in other cities? What the experience of other cities is, whether it's with traffic or flooding or with these so-called adult theatres?
Jack R. Burns: Your Honor, there's nowhere in this record that I can find what their concerns were about these theatres.
Warren E. Burger: Well, why do they have to... do they have to put their concerns in the record? Do they have to say what they're thinking?
Jack R. Burns: I think so, Your Honor.
Warren E. Burger: What they have against them?
Jack R. Burns: I think what... they have to make findings of fact that justify the restriction on speech. I don't think there's any way around that, because if their intent is to, is to sensor speech and to oppress it in any respect, that's an improper attempt which cannot be sanctioned in any sense. What Renton is suggesting to this Court is a rule that would allow it to state a governmental interest and say that we have made available permissible locations, and then insulate that decision forever from judicial scrutiny, and that rule, I don't believe, can be accepted by this Court. The essential difference between this case and Young is that there is an intolerable burden on speech that exists as a result of this ordinance, and that's problem of access. If government makes no rule about access and does not limit access to speech, then there's no intrusion that can be blamed on the government and no violation of the First Amendment. On the other hand, if government does make the rule and government does limit access, then I think government has the duty to establish that not only are there permissible locations, but that somebody can actually go there, because otherwise they've precluded them through a de facto zoning scheme from going anywhere, and they're created what they've perhaps set out to do, was censor the material and remove it entirely from the City. In this respect, I believe that the zone that I described and as depicted on that map is a substantial burden on speech. The alternative locations are unsatisfactory. As this Court has said before, an individual is not to have his right of free speech circumscribed on the argument that he can exercise it somewhere else. These locations make it more difficult both for sellers to reach an audience and for the public to make the material available to us... to itself. Its design, this ordinance is designed to prevent some people from getting the information by making it more difficult to get it. What Renton has said, in essence, out of sight, out of mind. We can't identify what's wrong with these locations. We can't identify what the harm is to churches or schools, but we know it exists somewhere--
Byron R. White: Could I, could I ask, suppose that in this record there was evidence of the likely effect of adult theatres being too close to residential districts. And suppose the evidence was such that even you would agree that there's a pretty good showing that that would have these harmful consequences. But then the rest of the facts here are the same. Would you say that Renton then could not exclude these adult theatres from these locations?
Jack R. Burns: --Well, Your Honor, to answer your direct question about residential areas, I think they could make such a showing. They could exclude under Young.
Byron R. White: And even though the only place these, even though the only place these theatres could then go is to this area that you say is wholly unsatisfactory?
Jack R. Burns: Well, that creates a more substantial--
Byron R. White: Well, that's my question.
Jack R. Burns: --Okay. Well, if, if they can show a substantial harm, I believe that they can regulate, Your Honor.
Byron R. White: And even though this area that the adult theatres would have to move to is as unsatisfactory as you say it is?
Jack R. Burns: Yes, Your Honor. Now, the reason that I say that is that, is that there are locations out there, permissible locations. If none are available, however, we have to balance these interests that--
Byron R. White: Well, that's what I'm asking. The other facts in this case are the same except that there's adequate proof of, of harm, of potential harm to the residential areas.
Jack R. Burns: --If there is adequate proof of potential harm, they can zone out. That's a demonstrable secondary effect. On the other harm, Your Honor--
Byron R. White: Even though, even though other sites may not be available?
Jack R. Burns: --Well, I think, in my personal view, a city has the right to deal with these problems as they can any other kinds of land use problems. However, in dealing with those problems, they have to be sensitive to the concerns that exist. But the problem here with Renton is that they have zoned these theatres out of the commercial areas as well as the residential areas. And when you zone them out of the commercial areas as well, the problems that may exist and the concerns that you're trying to protect in a residential area do not exist to the same degree in a commercial area. Now, Renton's ordinance is different from the ordinance in Young and the ordinance in Seattle, in that Renton's ordinance excludes these operations or these businesses from a location within <one thousand> [= 1,000] feet of any residential unit.
Sandra Day O'Connor: Well, now, is none of the property in the 520 acres zoned for commercial use? Is that what you're saying?
Jack R. Burns: Generally, Your Honor, it's zoned for industrial use.
Sandra Day O'Connor: Is any of the property in the 520 acres zoned for commercial use?
Jack R. Burns: Not to my knowledge, Your Honor.
Byron R. White: Well, can a commercial property be located in an industrial area?
Jack R. Burns: Well, to that extent that it can, there are less--
Byron R. White: I mean, it's not forbidden. It's not forbidden even--
Jack R. Burns: --No.
Byron R. White: --though, so the answer is commercial establishments may be located in an industrial area.
Jack R. Burns: They can; but, Your Honor, there's evidence in this record that a commercial establishment such as a theatre requires a certain kind of location that nobody disputed. It's a recreational kind of activity. It needs streets--
Byron R. White: But it would not be against the zoning law for this theatre to be in the industrial area.
Jack R. Burns: --No, it would not be against the zoning law.
Sandra Day O'Connor: Does the record disclose that there is at least one shopping center in the 520 acres?
Jack R. Burns: Yes, Your Honor, that's a fully developed shopping... well, yes, it is. But it's, it is in a location which is outside of that main area. If I could point it out to you on a map which Mr. Prettyman showed to you. It's the map on page 141.
Sandra Day O'Connor: 141a?
Jack R. Burns: 141a, Your Honor. It is the location which is up here in the corner that looks somewhat like an upside down L. That is the location of the commercial shopping center.
Sandra Day O'Connor: Up in the extreme right corner?
Jack R. Burns: Yes, Your Honor, if you can see where I'm pointing. It's sort of an upside down L that's in grey. Now, that particular location, Your Honor, is a fully developed shopping center--
Sandra Day O'Connor: Oh, I see. He has that upside down.
Jack R. Burns: --However, that location is not available in a practical sense, in that the location is very small in size. In the opinion of our experts, it would not have enough land to accommodate an adult theatre. So, while that particular location is both suitable and permissible, it's not available in the sense that it's not large enough, and it's not available in the sense that it's probably not for sale.
Sandra Day O'Connor: But there would be other undeveloped land nearby--
Jack R. Burns: No.
Sandra Day O'Connor: --that presumably could be available?
Jack R. Burns: Well, Your Honor, that little L-shaped area is the only area there that is available. The other area is that little rectangular area to, as you're looking at the map, directly beneath it over here, which is an industrial warehouse kind of area which is served by railroads. And then the main core of the 520 acres is down in this undeveloped land, which I showed you in the aerial photograph.
Byron R. White: What do you mean unavailable?
Jack R. Burns: I mean unavailable in the sense that somebody will not sell it or rent it to you, Your Honor. That's what I mean by unavailable. We had, the record below establishes that there was a real estate expert who went around to every property owner within this land area and queried whether their property was for sale or whether they would rent it for use as an adult theatre. The almost unanimous answer of those people was no.
Byron R. White: But, again, if there had been adequate proof or some grounds for believing, a decent grounds for believing there would be danger to residential areas, this unavailability would make no difference?
Jack R. Burns: Not but in that area it wouldn't, but there is no proof that there's any danger--
Speaker: I know that's your claim.
Jack R. Burns: --to the commercial areas, Your Honor. It is our position that this ordinance asserts no compelling governmental interest in the sense that the concerns of this ordinance are with the effects of the content of the speech, not the operational characteristics of the business, which we believe is the key determinative factor. There's no difference in this record in the operational characteristics between an adult theatre and a general audience theatre. There's no indication that this theatre draws transience or does anything else of an outward nature.
Speaker: When you say this theatre, are you referring to an unbuilt theatre in Renton?
Jack R. Burns: Yes, Your Honor. I'm referring to my client's theatre in one sense and to the unbuilt theatre, because this ordinance affects the first use that comes into town. It's not an ordinance that says that these kinds of uses cannot congregate together or must be separated.
Speaker: It would be hard to get any empirical evidence that an unbuilt theatre did much of anything in Renton, I suppose.
Jack R. Burns: But, Your Honor, there are locations in small cities within the State of Washington where there is one adult theatre.
Speaker: You say that--
Jack R. Burns: And they could go get that kind of evidence if they wanted to.
Speaker: --But they can't go to Seattle.
Jack R. Burns: Well, what they did in Seattle is different, Your Honor, and I think that's the distinction and the difficulty in relying on the experiences of other cities. If you're going to rely on what Seattle did, be concerned about the same problems and do the same thing. If you're going to rely on what Detroit did--
Speaker: But it, but if Seattle made a study in anticipation of taking some action in its city, regardless of what action Seattle took as a result, why can't the City of Renton rely on the studies paid for and produced by the City of Seattle?
Jack R. Burns: --Your Honor, I don't object to that, but Renton never looked at that study in this case. They never even looked at it.
Speaker: Well, but the State of Washington's courts looked at it, and I would think that might even be the best evidence.
Jack R. Burns: Your Honor, I don't believe that reading a court decision supplies the empirical basis needed to make a zoning decision.
Speaker: It doesn't, even though the court's decision is based on, on satisfactory empirical data?
Jack R. Burns: Your Honor, it doesn't give you the empirical data, the underlying studies upon which to make the decision. I don't believe that simply by reading court decisions, any municipality can say we have that problem; these studies support our answer to it. I just don't find that persuasive. In--
Speaker: Do you contend that the court somehow has to make sure that every city council member has set aside so much time and really studied a particular thing in a particular manner to survive constitutional testing of their actions?
Jack R. Burns: --Your Honor, if they're going to infringe upon First Amendment interests, then the answer is yes. I think that they have to be extremely careful to what they're doing in order to place any burden on speech. In that respect, I would--
Speaker: You don't think any post hoc production of evidence would suffice?
Jack R. Burns: --Certainly not in this case, which all the evidence was post hoc. But what I would suggest as a minimum is that if they're going to rely on the experience of other cities, that they say that a city compelled to assert precisely what it is they're relying on and why they're relying on it, and put that in their findings of fact and their conclusion of--
Speaker: Mr. Burns, supposing they had a growing, a rapidly growing city, and didn't have any motion picture theatres at all, and they had to plan a city plan with zoning in it, and they decide to put motion picture theatres in a commercial zone. Do they have to go out and make an independent study, or can they rely on the experience of other cities for that kind of decision? Clearly, it would burden the First Amendment interest.
Jack R. Burns: --But, Your Honor, as long as they haven't based their decision on content, at that point I think what they've done is okay. If they say general audience theatres can be in one zone and adult theatres have to be in another zone, then they're making a distinction based on--
Speaker: So, it's critical to your case, as I understand it, it's critical to your case that this is a content regulation?
Jack R. Burns: --Absolutely, Your Honor, absolutely.
Speaker: So, you do really ask us to re-examine Young?
Jack R. Burns: No--
Speaker: You say so in so many words in your brief, and I'm just surprised you don't stick to your guns.
Jack R. Burns: --Well, I don't think I'm asking you to re-examine Young, because I think that that this case can be analyzed under Justice Powell's decision, his use of the O'Brien test, but I don't even believe the O'Brien test is appropriate in this case, because I believe that the burden on speech is substantial here. It's not minimal or incidental, and therefore strict scrutiny is the test that ought to be applied. And so, I can live with Young. Young says to me, Justice Stevens, that we can base decisions on content with respect to motion picture theatres so long as there is an identifiable secondary effect from the operational characteristics, not that we perceive that the speech is going to have people react or not react in one manner or another. Let me conclude--
Speaker: Before you move to another... The district court found, and this is on page 28a of the Appendix, Appendix to the jurisdictional statement, 28a, the last sentence in the full paragraph on that page, that ample accessible real estate is available for the location of adult theatres in Renton. The court of appeals declined to accept that. It also declined to apply the clearly erroneous rule to it, relying on this Court's decision in Bose, B-o-s-e. Do you rely on Bose?
Jack R. Burns: --Yes, I do, Your Honor.
Speaker: You're aware that Bose involved Sullivan against New York Times and proof of malice.
Jack R. Burns: Yes, sir.
Speaker: Do you have to prove malice in this case?
Jack R. Burns: No, I don't think you to have prove malice. I think--
Speaker: Well, why is Bose relevant, then?
Jack R. Burns: --Well, I think Bose stands for the proposition that where there are fact law determinations and the law is critical to how one analyzes the facts, that the court has the responsibility to examine those de novo. Much as in the area of obscenity, where this Court reviews de novo, or has the right to review de novo, the obscenity of any material before it. A district court or a jury may find it obscene, and that's a finding of fact, but this Court has to make that ultimate First Amendment decision which is based upon the fact law problem.
Speaker: In every First Amendment case?
Jack R. Burns: Yes, Your Honor.
Speaker: Even where the district court has held that the effect on First Amendment rights, if any, was quite incidental?
Jack R. Burns: That, again, the incidental effect is another fact law determination that I think is, is critical.
Speaker: --mixed question of fact and law?
Jack R. Burns: Yes, Your Honor. I would say, in conclusion, that the notion that pervades Renton's ordinance is that there's a need to protect certain places, schools, churches, and so on from adult theatres. But that need, that express need, the whole purpose of this ordinance is nullified by the under-inclusiveness of the ordinance. This ordinance deals only with adult theatres. There is no evidence in this record or anything that I can find that establishes that an adult theatre has a different operational characteristic or effect upon these places than other adult businesses which are not regulated and not subject to the burden of this ordinance. For those reasons, Your Honor, I would submit that the judgment of the Ninth Circuit should be affirmed. Thank you.
Warren E. Burger: Do you have anything further, Mr. Prettyman?
E. Barrett Prettyman, Jr.: Three brief points, Your Honor. First, my co-counsel tells me I said that I was out there ten years, and I meant ten days ago. I apologize to the Court. The first point is this. Mr. Burns said that there's nothing in the record to indicate that adult theatres attract people other than those that are here in the courtroom. I assure you that that is not the case; that this record shows, through Mr. Clemmons' testimony, who attended virtually all of these meetings, that what these committees and the City Council considered were the experiences of other cities as reflected in some documents, but primarily in the decisions which, as Justice Rehnquist has pointed out, fully set forth precisely what had gone on in those communities. Justice Stevens, in the Seattle case, Northend Cinema, if you... they noted that the Apple Theatre, for example, in the First Hill community by itself, and then two other theatres in another residential community, had the adverse effects. Mr. Clemmons had been, incidentally, for seven years in Milpedes, California, where they had had an adult problem, and he was familiar with that and could tell the City Council about it. The record also indicates that we looked at Tacoma. Tacoma had a case which the Ninth Circuit, where they approved a zoning ordinance in an unreported decision. We've cited that in our reply brief--
Speaker: Why did they, why did they approve that? Did they recite the adverse effects?
E. Barrett Prettyman, Jr.: --Yes, they did.
Speaker: Likely or probable or actual, or what?
E. Barrett Prettyman, Jr.: No, they cited actual in that case, and it was primarily based upon things such as property values going down and that kind of thing, which of course we relied on here. If you want to see a good example of a study which goes to a single theatre, look at the Phoenix study, which is cited in our brief, which compared a single adult theatre in an area with another area that did not have one and found, for example, that the crime rate was three times as high.
Speaker: Mr. Prettyman, may interrupt you? You're now focusing on the justification for the ordinance, and turn your attention to what remains available for the adult theatres, that phase of the case, and that as Justice Powell pointed out, the district court found that there was ample accessible real estate there, and the court of appeals then says the standard of review is de novo. What, in your view, is the correct standard of review of that finding of fact?
E. Barrett Prettyman, Jr.: That was going to be my third point, and I'll go to it immediately, Justice Stevens. It seems, the reason that we haven't paid much attention to that in our briefs is that we're happy to have you use strict scrutiny if you want to, because we think we passed the test. But it seems to use that the Bose test is really a strange one to use in this context for the reasons that Justice Powell pointed out, and it is very interesting that the Ninth Circuit itself, different panels admittedly, in the Tacoma case and the City of Carona case, which is cited by Mr. Burns in one of his later briefs, both use the clearly erroneous test in this situation. And it seems to us that in a situation where you have such an incidental restriction on First Amendment rights as opposed to one where you have a total exclusion or some factor such as the malice situation--
Speaker: Yes, but in Young, of course, it was specifically assumed that the total market for the particular speech was not diminished.
E. Barrett Prettyman, Jr.: --I think you can assume that here. The most that we have in this--
Speaker: You can't under this finding, but the question is whether that finding is important enough to merit more careful review and some finding--
E. Barrett Prettyman, Jr.: --Well, Your Honor, I think that where you have an area that will accommodate over 400 theatres and it's readily accessible and criss-crossed by roads, the most that you've got is an inconvenience. Somebody who may want to be downtown and see one is going to have to drive for a little bit.
Speaker: --Mr. Prettyman, I take it that your opposition indicated that there was sufficient proof of probable injury to residential neighborhoods, that availability wouldn't make any difference.
E. Barrett Prettyman, Jr.: If there was sufficient proof, availability wouldn't make any difference?
Speaker: No, no, no. If there was sufficient proof of harm to residential neighborhoods--
E. Barrett Prettyman, Jr.: I don't go that far. I don't say that if you had harm to residential neighborhoods you could zone them; you could do a Schad. I don't say that. And I think the reason, Justice White, is that there would then have to be some accommodation. You might have to, you might have to restrict your area from 1,000 feet to 500. You might have to accommodate in some fashion to make sure that there was some outlet for this expression.
Speaker: --But you think that whatever, whatever threshold availability there was was passed, here?
E. Barrett Prettyman, Jr.: It's clearly that in this case, yes. The only other point I would make is that he said that we zoned him out of the commercial area. We didn't zone them away from the commercial area, we zoned them away from residences and churches and stuff, and it just so happened that in our city they're all mixed in with the commercial zone, so they're not right downtown. But let me pose this question to you. Do they have a right, do they have a constitutional right to be where they want to be, where most customers are walking by the door, where they don't have to put up signs because there's so many people walking by that they'll get a ready audience? Or can we put them away from where they're doing the harm but where people can still go, you still have plenty of film, plenty of theatres, plenty of access, and everybody can see what they want to? And with that, I hope very much that you'll reverse.
Warren E. Burger: Thank you, gentlemen. The case is submitted.