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App. B / Adult Businesses
<br />In Young, the Court upheld the validity of Detroit ordi-
<br />nances prohibiting the operation of theaters showing sexu-
<br />ally explicit "adult movies" within 1,000 feet of any two other
<br />adult establishments.° The ordinances authorized a waiver
<br />of the 1,000 -foot restriction if a proposed use would not be
<br />contrary to the public interest and/or other factors were
<br />satisfied. Young, supra, 427 U.S. at 64 n.7, 96 S. Ct. at 2444
<br />n.7. The ordinances were supported by urban planners and
<br />real estate experts who testified that concentration of adult -
<br />type establishments "tends to attract an undesirable quan-
<br />tity and quality of transients, adversely affects property
<br />values, causes an increase in crime, especially prostitution,
<br />and encourages residents and businesses to move else-
<br />where." Id. at 66, 96 S. Ct. at 2446. A "myriad" of locations
<br />were left available for adult establishments outside the for-
<br />bidden 1,000 -foot distance zone, and no existing estab-
<br />lishments were affected. Id. at 71 n.36, 96 S. Ct. at 2463 n.36.
<br />Writing f,)r a plurality of four, Justice Stevens upheld the
<br />zoning ordinance as a reasonable regulation of the place
<br />where adult films may be shown because (1) there was a
<br />factual basis for the city's conclusion that the ordinance
<br />would prevent blight; (2) the ordinance was directed at
<br />preventing "secondary effects" of adult -establishment con-
<br />centration rather than protecting citizens from unwanted
<br />"offensive" apeech; (3) the ordinance did not greatly restrict
<br />access to lawful speech, and (4) "the city must be allowed a
<br />reasonable opportunity to experiment with solutions to
<br />admittedly serious problems." Id. at 63 n.18, 71 nn.34, 36, 96
<br />S. Ct. at 2448--49 n.18, 2462-63 nn.34, 36.
<br />tainment zoning ordinance is City of St. Paul v. Carlone, 419 N.W.2d 129
<br />(Minn. App. 1988) (upholding facial constitutionality of St. Paul ordi-
<br />nance).
<br />9 The ordinances also prohibited the location of an adult theater
<br />within 600 feet of a residential area, but this provision was invalidated by
<br />the district court, and that decision was not appealed. Young v. American
<br />Mini Theaters, Inc., 427 U.S. 60, 62 n.2, 96 S.Ct. 2440, 2444 n.2 (1976),
<br />410
<br />Minnesota Attorney General's Report / App, B
<br />Justice Stevens did not expressly describe the standard h
<br />had used, but it was clear that the plurality would affor
<br />non -obscene sexually explicit speech lesser Firs
<br />Amendment protection than other categories of speech. How
<br />over, four dissenters and one concurring justice concluder G
<br />that the degree of protection afforded speech by the First
<br />Amendment does not vary with the social value ascribed to w
<br />that speech. In his concurring opinion, Justice Powell stated
<br />that the four-part test of United States v. O'Brien, 391 U.S.
<br />367, 377, 88 S. Ct, 1673, 1679 (1968), should apply. Powell
<br />explained:
<br />Under that teat, a governmental regulation is Suffi-
<br />ciently justified, despite its incidental impact upon First
<br />Amendment interests, "if it is within the constitutional
<br />power of the Government; if it furthers an important or
<br />substantial governmental interest; if the governmental
<br />interest is unrelated to the suppression of free expres-
<br />sion; and if the incidental restriction on . First
<br />Amendment freedom is no greater than is essential to
<br />the furtherance of that interest."
<br />427 U.S. at 79-80, 96 S. Ct. at 2467 (citation omitted;
<br />(Powell, J., concurring).
<br />Perhaps because Justice Stevens' plurality opinion did not
<br />offer a clearly articulated standard of review, post -Young
<br />courts often applied the O'Brien test advocated by Justice
<br />Powell in his concurring opinion. Many ordinances regulat-
<br />ing sexually oriented businesses were invalidated under the
<br />O'Brien test. See R.M. Stein, Regulation ofAdult Businesses
<br />through Zoning After Renton, 18 Pac. L.J. 361, 360 (1987)
<br />("consistently invalidated"); S.A. Bender, Regulating Por-
<br />nography Through Zoning: Can We "Clean Up'Honolulu7, 8
<br />U. Haw. L. Rev. 76, 106 (1986) (ordinances upheld in only
<br />about half the cases).
<br />Applying Young, the Eighth Circuit Court of Appeals in-
<br />validated a zoning ordinance adopted by the city of Minnea-
<br />polis. Alexander v. City of Minneapolis, 698 F.2d 936 (8th Cir.
<br />1983). In Alexander, the challenged ordinar - - ',.ad three
<br />
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