Tuesday, March 22, 2011
George Smith (Catholic) and Gregory Bailey have posted Regulating Morality through the Common Law and Exclusionary Zoning, 60 Catholic L. Rev. 403 (2011). Here's the abstract:
The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, open-ended moral judgments should be eschewed as foundational bases for legal judgments. Indeed, advancing moral grounds as justification for regulating personal liberties of sexual expression and association are being seen by some as invalid reasons for enacting exclusionary land use regulations - here, for the containment of activities connected with sexually oriented businesses [SOBs]. No unequivocal standard of dispositive clarity will ever be formulated which determines when conduct is unreasonable in that it is lewd and obscene or when written, electronic and photographic material pornographic in content rises to the level of obscenity and thereby subject to strict regulation. The most logical and common sense approach to this quandary is for legislators, land use planners, zoning commissioners and courts, in trying to either eliminate or contain the operation of SOBs, is to rely upon and use several tools: common law nuisance fortified by either moral, anticipatory or aesthetic iterations or models, and exclusionary zoning techniques. Difficult though determining when, under nuisance law, conduct is so unreasonable as to warrant its cessation, the Restatement of Torts Second provides a workable construct for making that determination. Both strengthened and guided by the doctrine of secondary effects, nuisance actions of all types have a clear placement in the arsenal of legal weapons which may be used to regulate effectively SOBs. The implementation of a community-based standard of morality for proper regulatory control of SOBs will always present an issue of unpredictability inherent in its underlying flexibility. For the content-neutral regulation of sexually oriented businesses, the only limiting requirement analyzed, aside from ensuring adequate alternative channels of communication, is determining if the regulation serves a significant government interest. Further, while the Supreme Court has held repeatedly that preventing a multitude of secondary effects is a significant government interest, the manner in which that goal could be served has not been meaningfully defined or limited. The secondary effects doctrine places great power, and corresponding responsibility, in the hands of each local community - but it does so at the peril of uniformity. While uniformity is not an absolute necessity in the Federalist system, the type and severity of secondary effect that can be a justification for regulating the location of a sexually oriented business should be clarified. The time, place, or manner restrictions imposed can be left up to each locality to tailor to their needs, but the triggering events for those restrictions must be more clearly defined.