NYC Sex Shops Are Protected by the First Amendment, Court Rules

For years, New York has tried to clamp down on the city's sex shops. But the Appellate Division of the State Supreme Court ruled this week that adult video stores, bookshops, and even topless dancing clubs are all protected by the First Amendment.

Does freedom of speech = freedom of sex?

I'll Know It When I See It

The ruling allows porn stores so long as no more than 40 percent of their offerings contain sexual content. New York City had previously tried to ban erotic-themed stores, cabarets, and other establishments within 500 feet of a school, house of worship, or another sex-related business.

It's true that speech that is "prurient," "patently offensive," or lacks any serious literary, artistic, political, or scientific value can be restricted under the First Amendment. Nonetheless, commercial speech generally receives greater protection. As Erica T. Dubno, an attorney for some the businesses, said:

"It's all about free speech and whether you can regulate businesses and the content of those businesses based purely on someone's animus towards the type of expression being offered there. But under the First Amendment, you can't regulate speech without showing some type of harm."

The Corporate Reality of Modern Times Square

The city's Law Department is reviewing the ruling before deciding whether to appeal, but the intent may have already been realized. The corporatized Times Square of today is a far cry from the carnal Times Square of the 1970s, a shift probably welcomed by tourists and less-welcomed by longtime residents.

Daniel J. Walkowitz, a professor of history at New York University, told the New York Times: "The neighborhood used to be fringed by these sex shops so it created a kind of gauntlet you had to cross to reach the bright lights." But now, "they no longer set the tone for the neighborhood in quite the same way." Instead, "the seediness comes from the cockroach capitalism of cheap T-shirt shops."

This ruling allows the sex shops to stay in business, but their time as an enduring aspect of the city's culture may have already passed.

Related Resources:

• Court Rejects New York City's Efforts to Restrict Sex Shops (The New York Times)
• Ga. City's Sex-Toy Ban Is Unconstitutional, Lawsuit Asserts (FindLaw's Legally Weird)
• Porn Ban in Michigan Jail Unconstitutional, Inmate Sues Gov. (FindLaw's Legally Weird)
• Porn Industry Gets Second Shot at First Amendment Case (FindLaw's Third Circuit)