Oregon Advisory Opinions May 31, 1989: OAG 89-13 (May 31, 1989)
Collection: Oregon Attorney General Opinions
Docket: OAG 89-13
Date: May 31, 1989
Advisory Opinion Text
OAG 89-13.
A measure is pending in the Oregon Senate to refer a proposed state constitutional amendment to the people. The measure would amend Article I, section 8, of the Oregon Constitution to allow state and local governments to regulate nude dancing to the same degree permitted by the First Amendment to the United States Constitution. We have been asked three questions, all of which raise in various ways the issue whether Article I, section 8 requires state and local governments to wait until adverse secondary effects(fn1) of nude dancing occur before regulating them.
The existing cases do not resolve this issue. Although the Oregon Supreme Court has only recently begun to develop an independent state constitutional analysis under Article I, section 8, its method of analyzing free speech issues provides some guidance in answering the question posed. This opinion accordingly will first outline briefly the Oregon Supreme Court's analysis under Article I, section 8, of the Oregon Constitution. It then will address the specific issues raised by the question.
Article I, section 8, of the Oregon Constitution provides:
The Oregon Supreme Court has adopted a three-step analysis to determine whether a statute complies with Article I, section 8. See State v. Moyle, 299 Or 691, 705 P2d 740 (1985); State v. Robertson, 293 Or 402, 649 P2d 569 (1982). The first step asks whether the statute is "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." State v. Robertson, supra, 293 Or at 412. If it is, the statute will be declared unconstitutional unless the statute comes within a well-established historical exception, such as perjury, slander, or solicitation.(fn2) Id. The effect of this first step is to require that statutes be directed to the specific harm the legislature intends to prevent rather than the type of speech that is assumed to cause the harm. Directing a statute at a stated harm, however, does not necessarily end the inquiry. Id.No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.
Even laws that are directed at specific harms may include speech as one of the elements of the law or make speech the intended target of the law. The coercion statute at issue in State v. Robertson, for example, prohibited a harm (compelling otherwise voluntary conduct by fear) produced by a demand (speech). When, as in Robertson, speech is an element of the statute or its intended target, the Oregon Supreme Court has considered a second step: whether the law is overbroad, that is, whether it reaches constitutionally protected as well as unprotected speech. See State v. Robertson, supra, 293 Or at 416. If the court cannot interpret an otherwise overbroad law to keep it within constitutional limits and still remain true to the legislature's intent, the
law will be declared unconstitutional. Compare State v. Moyle, supra, with State v. Robertson, supra.
If a law is neither directed at speech nor overbroad,(fn3) the court's analysis proceeds to the third step: whether the law is constitutional as applied to the specific facts of a case. See State v. Robertson, supra, 293 Or at 412, 417. This question may arise primarily in two different situations, and it is important to distinguish between them. In the first situation, an otherwise speech-neutral law is applied to prevent an anticipated effect brought about by speech. If, for example, a speaker tells his or her listeners to overthrow the government, the question becomes at what point is the connection between the speech and the forbidden effect sufficiently close to justify forbidding or limiting the speech. Although the court has not addressed this question directly, it appears that a law will be unconstitutional as applied unless the speech is "highly likely" to bring about the effect. See In re Lasswell, 296 Or 121, 127, 673 P2d 855 (1983) (per curiam);(fn4) State v. Garcias, 296 Or 688, 698 & n 9, 679 P2d 1354 (1984).
The second situation occurs when a person commits an act that is associated with speech or intended to communicate an idea and the law forbids the act
independently of the communication. If, for example, a protestor defaced government property by painting a political slogan on it, the question would be whether a speech-neutral law against defacing government property could be applied constitutionally to a communicative act. Because the Oregon Supreme Court has not considered a case that presents this question, it is difficult to predict how the court will analyze the issue. When speech is incidental to the reason for proscribing the act, the court has suggested that the law typically will be constitutional as applied. See City of Portland v. Tidyman, 306 Or 174, 182, 759 P2d 242 (1988) ("[a] grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its check-out counter"). This appears to be true even if the act is intended to communicate an idea. Cf. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 368, 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987) (explaining that the court previously had upheld the application of a regulation "neutral toward religion on its face and in its policy," to persons who were "discharged for religiously motivated conduct"); United States v. O'Brien, 391 US 367, 88 S Ct 1673, 20 L Ed2d 672 (1968) (law prohibiting mutilating draft card not unconstitutional as applied to person burning draft card for symbolic purposes). The analysis, however, also may turn on the reason for the regulatory action or the degree to which the regulation effectively forecloses one class of speakers from communicating their message to others.(fn5) See City of Portland v. Tidyman, supra, 306 Or at 182--83; compare L. Tribe, AMERICAN CONSTITUTIONAL LAW 977--86 (2d ed 1988).
Most of the court's opinions have applied this analysis to laws that either regulate speech directly or regulate the primary effect of speech. Two recent cases, however, have applied this analysis to laws regulating secondary effects of speech.
In City of Portland v. Tidyman, supra, the court considered an ordinance that zoned "adult bookstores" on the theory that certain secondary effects generally were associated with these businesses. The constitutional problem with the ordinance was the way it was drafted. Because the ordinance was "flatly directed against one disfavored type of pictorial or verbal communication," 306 Or at 184, it violated the first principle in the court's Article I, section 8 jurisprudence. A law may not be written in terms that are directed at the content of speech. See City of Portland v. Tidyman, supra, 306 Or at 192 (Gillette, J., concurring in part and specially concurring in part). Tidyman is
an extension of the court's earlier free speech cases, in that it recognizes that the same principles that apply to laws regulating the primary effect of speech also apply to laws regulating secondary effect.
The court again applied its method of analysis to the Green River ordinance at issue in City of Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988). That ordinance prohibited a secondary effect of speech, "uninvited entries to private property" for the purpose of selling goods. 306 Or at 555. Because the ordinance did "not by its terms prohibit speech," it did not suffer from the same defect as the ordinance in Tidyman. Id. The intended target of the act, however, was communicative behavior --- entry onto property for the purpose of selling goods --- and the court examined the ordinance for overbreadth. Tidyman and Purcell thus confirm that the method of analysis established for laws regulating the primary effect of speech applies to laws that regulate secondary effect as well.(fn6)
With these principles in mind, we now turn to the three specific questions posed by the requestors. Each of the questions concerns government's ability to regulate the secondary effects of nude dancing. Each question also assumes, either expressly or implicitly, that nude dancing is a form of speech for the purpose of Article I, section 8. We accept this assumption, although it is important to note that the Oregon Supreme Court has never held that nude dancing is protected expression or speech within the meaning of Article I, section 8.(fn7) When a law regulates an activity, such as nude dancing, in which
both conduct and expression are combined, the constitutionality of the law, or at least the nature of the constitutional challenge, may depend on the specific aspect of the activity at which the challenged law is directed.(fn8)
A. The Holding in Tidyman
The first question asks whether "the Tidyman case holds that actual adverse effect on the neighborhood of the 'entertainment' offered by such an establishment must be shown before its proposed activities may be regulated or forbidden."(fn9) (Emphasis in original.) To the extent that underscoring the word "holds" constitutes an inquiry into the technical holding in Tidyman, the answer is no. As noted above, the city's ordinance was inconsistent with Article I, section 8 because it was "flatly directed against one disfavored type of pictorial or verbal communication." 306 Or at 184. See City of Portland v. Tidyman, supra, 306 Or at 192 (Gillette, J., concurring in part and specially concurring in part). Because the holding in Tidyman did not reach the issue presented by the first question, it leaves open the possibility that state or local governments may impose time, place, and manner restrictions on the secondary effects of speech if those restrictions specify the secondary effects that are objectionable.
See City of Portland v. Tidyman, supra, 306 Or at 193--94 (Jones, J., specially concurring).(fn10)
We also read the question more broadly. Under the reasoning in Tidyman, would government wait until adverse secondary effects of speech actually have occurred before it may regulate them? The answer appears to be no. As discussed above, the court's prior opinions have suggested that an otherwise speech-neutral law may be applied constitutionally to prevent an anticipated effect of speech, provided there is a sufficient showing that the harm is imminent or highly likely to occur in the specific case. See City of Hillsboro v. Purcell, supra, 306 Or at 555; In re Lasswell, supra. Consistent with this theory, the court in Tidyman noted that "[t]he city [of Portland] need not await the actual occurrence of substantial harm to a neighborhood before it invokes a nonpunitive, purely locational land use restriction." 306 Or at 188 (emphasis added). It also spoke of "requiring that the threat of a harm specified in the law be found to exist at the time and place rather than in general, permanent legislation." 306 Or at 188 n 12 (emphasis added).(fn11) This statement suggests that the real issue is not one of constitutional limitations on government's power to regulate, but rather a question of administrative law: Has the local government developed adequate procedures to make specific judgments about specific cases?
Although the holding in Tidyman does not necessarily require state or local government to wait until the secondary effect has occurred in order to regulate
it, government's ability to anticipate secondary effects of speech will vary with the type of regulation adopted. We address some of these differences more fully in the response to the second question.
B. Zoning Nude Dancing Establishments
The second question focuses on a particular type of regulation, zoning. It asks
The answer depends on the type of advance zoning sought. Article I, section 8 would preclude government from adopting some types of advance zoning that are permitted under the federal constitution. It would, however, allow other types of advance zoning. There are at least three ways to draft a zoning ordinance, each of which raises separate constitutional questions.[whether] an Oregon constitutional amendment [is] necessary in order for cities, counties and/or the State of Oregon to zone in advance nude dancing establishments away from homes, schools, churches and parks.
First, a local government could use zoning laws to separate commercial uses from residential, educational, religious, and recreational uses. Alternatively, it could allow specified types of businesses in residential areas. See City of Portland v. Tidyman, supra, 306 Or at 182 ("if a city chooses to allow ice cream stores or beauty shops in residential areas but not taverns or dental offices, no guaranteed right like free expression is invaded"). Because establishments offering nude dancing presumably would be included in the commercial zone, government could take steps in advance to separate the secondary effects of such commercial activity from residential and other land uses.
Such zoning laws would be valid as written; the terms of the law would not be directed at speech. See State v. Robertson, supra, 293 Or at 412. If the zoning laws were completely speech neutral --- that is, if speech were not a specified element of the zoning law or its intended target --- then it appears that the only challenge would be whether the law was constitutional as applied. Id., 293 Or at 417. As noted above, the Oregon Supreme Court has not addressed an "as-applied" challenge. In City of Portland v. Tidyman, supra, 306 Or at 182, however, the court suggested that speech-neutral zoning laws could be used to prevent incompatible uses, even though speech might be associated with a particular land use. The Tidyman court reasoned:
Thus the city could regulate the location of a business that sells other merchandise, "adult" or otherwise, even if it purveys communicative materials, as long as selling such other merchandise is not permitted at the location. A grocery store gains no privilege against a zoning regulation by selling The National Enquirer and Globe at its check-out counter. The same applies to "adult businesses" that sell other merchandise besides books, pictures or records. Even structures and activities unquestionably devoted to constitutionally privileged purposes such as religion or free expression are not immune from regulations imposed for reasons other than the substance of their particular message. Many .
regulations are not impermissible laws "restricting the right to speak, write, or print freely on any subject whatever," although they can be impermissibly applied in individual cases
Id.
A zoning law that was drafted solely in speech-neutral terms, however, might not always be an effective means of dealing with the secondary effects of nude dancing. If, to use the court's example in Tidyman, a town allowed ice cream stores in its residential area, it is unlikely that it would be able to exclude an ice cream store that featured nude dancing for its customers' entertainment.(fn12) Moreover, the court's reasoning does not preclude an as-applied challenge to a facially neutral zoning law. See City of Portland v. Tidyman, supra, 306 Or at 182 (noting that law is "not always unconstitutional" when it regulates the choice of a place or time for self-expression). As noted above, it is not clear how the as-applied analysis will develop, although the court's opinions suggest that the object or motive of the law may have a bearing on its constitutionality.(fn13) See id. at 186--87 & n 10.
Second, a law could be directed solely at establishments offering nude dancing because of their generally perceived secondary effects. Such a law probably would be upheld under the United States Constitution. See Renton v. Playtime Theatres, Inc., 475 US 41, 106 S Ct 925, 89 L Ed2d 29, reh den 475 US 1132 (1986).(fn14) Under Article I, section 8, however, the law would encounter the same problem that the ordinance did in Tidyman. The law would
be unconstitutional because it would be directed at speech and unlikely to come within a well-established historical exception. It thus appears that an Oregon constitutional amendment would be necessary to pursue this form of advance zoning. But see City of Portland v. Tidyman, supra, 306 Or at 192 (Gillette, J., concurring in part and specially concurring in part).(fn15)
Third, if the law were drafted to prohibit establishments that cause specified secondary effect, the analysis would be similar to the analysis in State v. Robertson, supra. (fn16) Because the law would be directed at an effect, the law would not be automatically unconstitutional as the ordinance was in Tidyman. Any question of overbreadth would be avoided because the law would prohibit only those instances of speech that result in the secondary effect.
The remaining question under the court's analysis would be whether the law would be constitutional as applied to, for example, an establishment that wanted to offer nude dancing. If a town waited until the secondary effect actually occurred, it is unlikely that there would be a problem with the application of the law. If the town wanted to anticipate the secondary effect, the law probably would be constitutional as applied as long as there was sufficient proof that a particular business would be highly likely to cause the specific secondary effect identified in the zoning ordinance.(fn17) See In re Lasswell, supra. Such a determination perhaps could be made pursuant to a speech-neutral licensing law in which the probable site-specific effects of individual businesses could be established even in advance of their actual operation. This issue is raised more fully by the third question posed by the requestors.
C. Licensing after an Adjudicative Hearing
The third question asks
whether such regulation or prohibition could be upheld under the Oregon Constitution if a city council properly found that particular adverse effects would occur at a particular site following a contested case hearing in which the council --- or its hearing officer --- reviewed evidence (1) of actual effects in other communities where establishments offering nude dancing had operated and (2) the suscept[i]bility of the neighborhood of the proposed local site to those adverse effects.
In effect, the third question asks whether Article I, section 8 permits a city council to license or decline to license enterprises offering nude dancing if a site-specific hearing were held.
It follows from the above discussion that, as qualified below, the answer is yes. If a city finds that the threatened harm from a particular activity at a particular site is highly likely, a city would not be constitutionally barred from imposing appropriate time, place, or manner restrictions on the activity. This answer, however, is subject to a number of qualifications. It assumes that the following steps would be taken before such a licensing scheme would be pursued.
First, the city would adopt an ordinance or promulgate
regulations specifying the particular secondary effects to be
avoided. Those secondary effects must be speech-neutral.
See City of Hillsboro v. Purcell,
306 Or 547, 554,
761 P2d 510 (1988).(fn18) Second, the city would hold some
sort of adjudicative hearing in which it considered evidence
on whether siting the particular business in the particular
area would result in the harm the city
legitimately sought to avoid. Third, the specific evidence submitted by the city would have to establish, at some level of probability, that the harm would occur. See In re Lasswell, 296 Or 121, 673 P2d 855 (1983) (state may prohibit speech in advance when it is "highly likely" that harm will result). Fourth, the city would apply its standards in an even-handed fashion so that ostensibly speech-neutral laws would not in fact be directed against speech. Cf. Yick Wo v. Hopkins, 118 US 356, 6 S Ct 1064, 30 L Ed 220 (1886). Fifth, the licensing scheme would leave it open to the prospective licensee to reapply if conditions changed. See City of Portland v. Tidyman, supra, 306 Or at 189--90. Finally, the regulation would not prohibit generally a type of speech. If it did, the regulation could be construed as a prior restraint on expression as opposed to a reasonable time, place, and manner restriction. Cf. Lloyd Corp. v. Whiffen, 307 Or 674, 686 n 6, 773 P2d 1294 (1989) (that Lloyd Center does not discriminate among speakers "eliminates the previous restraint problem inherent in enjoining people from entering or remaining in common areas of the Center only because of their political message").
If the law met these requirements, and if sufficient probative evidence were introduced, a licensing statute could sustain an Oregon constitutional challenge even where proof of the anticipated secondary effect rested on actual effects in other comparable communities and on evidence of the susceptibility of the proposed local site to the adverse effects.
We have been asked to describe the limits Article I, section 8 places on government's ability to regulate the secondary effects of nude dancing. We have attempted to do so by examining carefully statements and suggestions from the few court opinions that address free speech issues under the Oregon Constitution. Consequently, this opinion is at best a prediction. The Oregon Supreme Court has not yet decided the precise issues raised by the committee's questions. This opinion is limited to answering the committee's questions and is not intended to express any view on the appropriateness of a constitutional amendment addressed to nude dancing.
DAVE FROHNMAYER
Attorney General
DF:RK
Footnotes:
1 As used in this opinion, the phrase "primary effect of speech" refers to the impact of the content of the message. The phrase "secondary effect of speech" refers to an incidental effect resulting from the medium by which the message is presented. For example, the primary effect of a political parade would be to persuade people to support or oppose a particular political position or candidate. The secondary effect may be traffic congestion. Although government may regulate some primary and most secondary effects of speech, courts typically accord government much greater latitude in imposing reasonable time, place, and manner restrictions on secondary effects.
2 To qualify as a well-established historical exception, the "scope of the restraint [must be] wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach." State v. Robertson, supra, 293 Or at 412.
3 Not all laws that might include constitutionally protected speech will be subject to overbreadth analysis. See State v. Garcias, 296 Or 688, 699 n 10, 679 P2d 1354 (1984). Although the line is not completely clear, it appears that if speech is not an element of the statute or its intended target, overbreadth analysis is inapplicable. As the court explained in State v. Robertson, supra, if a law were
directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.
293 Or at 417 (emphasis added). In a footnote to this passage, the court left open the possibility that a person could argue that an otherwise facially neutral law was motivated by a desire to suppress speech. The court has not had occasion to consider such a law, but has suggested that an impermissibly motivated law would be subject to an overbreadth analysis. See State v. Robertson, supra, 293 Or at 416 (referring to the "intended target of the restrictive law" (emphasis added)); cf. City of Portland v. Tidyman, 306 Or 174, 187, 759 P2d 242 (1988) (contrasting federal constitutional test for predominant motive with Oregon's test).
4 In Lasswell, the court recast the issue posed by a bar disciplinary rule as whether an attorney's disclosure to the media was "highly likely" to impair a fair trial. 296 Or at 125. The court noted that "this test for public statements is consistent not only with the constitutional principles already discussed but also with the prosecutor's right as an elected public official to account for the conduct of his or her office and related law enforcement activities." Id. at 127. The court in effect held that the rule would be constitutional as applied only when it was highly likely that the speech would cause the prohibited effect.
5 A law, for example, might limit the use of sound trucks to prevent excessive noise. If, however, sound trucks are more frequently used by persons who lack access to more expensive media, it may be that that fact should be taken into consideration in deciding whether the law is constitutional as applied. See J. Ely, DEMOCRACY AND DISTRUST 111 (1980); cf. Clark v. Community for Creative Nonviolence, 468 US 288, 293, 104 S Ct 3065, 82 L Ed2d 221 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 US 789, 812, 104 S Ct 2118, 80 L Ed2d 772 (1984).
6 The rule at issue in Lasswell restricted the primary effect of speech. It is an open question whether a lower degree of probability would be sufficient when a city seeks to establish that an activity will result in a secondary effect.
7 In 1969, the Oregon Supreme Court considered a First Amendment challenge to a city ordinance that prohibited women from exposing their breasts to public view in a place where food or alcoholic beverage is offered for sale. See City of Portland v. Derrington, 253 Or 289, 451 P2d 111, cert den 396 US 901 (1969). The court upheld the application of that ordinance to a dancer. It has not yet had an opportunity to consider whether the same result would follow under the independent analysis of Article I, section 8 announced in State v. Spencer, 289 Or 225, 611 P2d 1147 (1980) and State v. Robertson, 293 Or 402, 649 P2d 569 (1982).
The Oregon Court of Appeals, however, has held that nude dancing is speech under Article I, section 8, Sekne v. City of Portland, 81 Or App 630, 726 P2d 959 (1986), rev den 302 Or 615 (1987), as has the United States Supreme Court under the First Amendment to the United States Constitution, see Doran v. Salem Inn, Inc., 422 US 922, 933, 95 S Ct 2561, 45 L Ed2d 648, 660 (1975). Sekne, supra, does not examine the precise text of Article I, section 8, nor whether nude dancing in all its forms constitutes "speech" or "expression of opinion." Instead, Sekne merely concludes that decisions from other jurisdictions under other state constitutional provisions have reached the conclusion that the activity is protected. We believe that the Oregon Supreme Court would require a more precise analysis.
8 Then-professor Linde has suggested, for example, that laws directed against "'obscene' expression" would be analyzed differently from laws directed against "'contributing to the sexual delinquency of minors' or against 'commercial exploitation of individuals (for example, models or dancers) as sexual objects' (akin to prostitution), or against the imposition of offensive indecency on an unwilling public * * *." Linde, "Clear and Present Danger" Reexamined: Dissonance in the Brandenburg Concerto, 22 STAN L REV 1163, 1184 n 70 (1970).
This is not to say that any of the alternative methods for regulating non-speech aspects of obscene expression would necessarily survive constitutional scrutiny. See id. Enforcement of speech-neutral laws still would be subject to challenges for vagueness, lack of evidence, "as well as to whatever [Article I, section 8] challenges the particular facts might allow." Id.; compare n 3, supra.
9 The first question refers to "regulat[ing] or forbid[ding]" an establishment's proposed activities. It appears from the rest of the letter that the question is not intended to focus on government's ability to forbid a category of speech generally. Rather, the focus appears to be on government's ability to decide in advance that a particular establishment's proposed activities are incompatible with the particular site as one form of a reasonable time, place, and manner regulation. This answer assumes that the reference to "forbid[ding]" the establishment's proposed activities is limited to this fairly narrow meaning.
10 Justice Jones explained that the "majority opinion does not rule out an ordinance which meets minimum constitutional standards." 306 Or at 193 (specially concurring opinion). He reasoned:
If a city chooses to zone out or zone in adult bookstores, or otherwise regulate them, the city can do so by specifying in advance, in the text of the ordinance, the nuisance it intends to eliminate * * *. The ordinance must address these secondary characteristics of the adult material and not the adult materials themselves.
Id. at 194. Although a special concurrence does not have the precedential effect of a majority opinion, Justice Jones' interpretation of the majority's reasoning is entitled to great weight.
11 An example will illustrate the problem a contrary answer would pose. Suppose that a political party wants to hold a parade in the middle of downtown Portland at five o'clock on Monday evening and seeks a license from the city. Suppose further that the City of Portland has no objection to political parades but is concerned about traffic congestion. The city need not wait until the parade has tied up traffic before it acts. Rather, it can anticipate the potential traffic problem by determining the effect the expected number of people will have on the volume of traffic that typically occurs in that part of the city at that time of day. It may impose reasonable time, place, and manner restrictions on the secondary effects of the speech in advance, provided it does so in an otherwise constitutionally proper manner.
12 A town could attempt to deal with secondary effects by excluding all commercial businesses that resulted in some secondary effect, such as traffic congestion. But such a law must be applied equally to businesses associated with speech and businesses that are not. If the law were applied unequally, a commercial business featuring nude dancing could claim that what appeared to be a speech-neutral law was in fact being applied as if it were a law directed at speech. See City of Portland v. Tidyman, supra, 306 Or at 182 n 5 (citing Yick Wo v. Hopkins, 118 US 356, 6 S Ct 1064, 30 L Ed 220 (1886)).
13 There may be considerable problems with a jurisprudence that requires analysis of the legislature's motive. See Palmer v. Thompson, 403 US 217, 224--25, 91 S Ct 1940, 29 L Ed2d 438 (1971); United States v. O'Brien, supra, 391 US at 383--84. While we remain skeptical that motive would be a permissible inquiry, the Oregon Supreme Court has noted the issue as perhaps having a bearing on the statute's constitutionality. See State v. Robertson, supra, 293 Or at 417 n 11. It has not decided an Article I, section 8 case on this ground, however.
14 The zoning ordinance at issue in Renton "prohibited any 'adult motion picture theatre' from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school." 475 US at 44. The ordinance was based on legislative findings that a form of speech --- adult movie theatres --- generally would result in certain adverse secondary effects, and directed that establishments engaged in that form of speech must be separate from certain other institutions.
15 Justice Gillette noted that a city might be able to zone adult bookstores as such away from schools, but did not resolve the question because other parts of the ordinance were unconstitutional. 306 Or at 192 (opinion concurring in part and specially concurring in part).
16 Such a law might be drafted in two ways. It could prohibit either all taverns that cause traffic congestion or all taverns offering nude dancing that cause traffic congestion. The first method of drafting the law does not distinguish among types of speech and would be subject only to an as-applied challenge.
The court's opinion in Tidyman suggests that the second method of drafting the law also would be permissible. See 306 Or at 189, 190--91 ("If a law specifies the harm and not only the expression, its valid application depends on demonstrating the specified harm under changing conditions * * *"). We question, however, whether the court would uphold a law that regulated pro-Republican parades that resulted in traffic congestion, but not pro-Democratic parades that result in the same problem. Such a regulation could be said to focus impermissibly on the content of the speech, not a problem associated with the particular medium of expression. To the extent nude dancing can be said to have some unique expressive content, there is at least a substantial question whether the court would uphold a law that was directed only at establishments offering nude dancing that caused a specified secondary effect.
17 We note two other issues. First, one might question how difficult it would be to convince a factfinder that a specific establishment offering nude dancing will cause the same secondary effects that other establishments previously have experienced. Second, the clarity with which the law describes the prohibited secondary effect is important. If the secondary effect is described so broadly that it allows the decisionmaker to exercise standardless discretion, there may be either questions of prior restraint or Article I, section 20 arbitrary decisionmaking. See City of Hillsboro v. Purcell, supra, 306 Or at 554 (citing City of Portland v. Welch, 229 Or 308, 320, 364 P2d 1009, 367 P2d 403 (1961) (on rehearing)); State v. Robertson, supra, 293 Or at 408.
18 By specifying the harm in advance, the regulation would avoid the sort of unrestrained discretion that may lead to concerns about prior restraints. See City of Hillsboro v. Purcell, supra, 306 Or at 554 (describing its earlier opinion on rehearing in City of Portland v. Welch, 229 Or 308, 320, 364 P2d 1009, 367 P2d 403 (1961), as follows: "unrestrained, unguided discretion to grant licenses can be a prior restraint prohibited by Article I, section 8").