Avalon Cinema Corp. v. Thompson, LR-C-80-586.

• Decision Date: 22 January 1981
• Docket Number: No. LR-C-80-586.,LR-C-80-586.
• Citation: 506 F. Supp. 526
• Parties: AVALON CINEMA CORPORATION v. Reed W. THOMPSON, Individually and in His Official Capacity as Mayor of North Little Rock, Arkansas et al.
• Court: U.S. District Court — Eastern District of Arkansas

506 F. Supp. 526

AVALON CINEMA CORPORATION v. Reed W. THOMPSON, Individually and in His Official Capacity as Mayor of North Little Rock, Arkansas et al.

No. LR-C-80-586.

United States District Court, E. D. Arkansas, W. D.

January 22, 1981.

John H. Weston, Brown, Weston & Sarno, Beverly Hills, Cal., and John Wesley Hall, Jr., Little Rock, Ark., for plaintiff.

Jim Hamilton, City Atty., North Little Rock, Ark., for defendants.

MEMORANDUM OPINION

ROY, District Judge.

Plaintiff filed this action requesting the Court to declare unconstitutional and to enjoin enforcement of North Little Rock Ordinance No. 5169.

Section 1 of the ordinance proscribes "within one hundred yards of a church, public or private elementary or secondary school, or an area restricted to residential use by the Comprehensive Zoning Ordinance of the City, or a public park adjacent to residential areas, a moving picture show or moving picture theater which exhibits, or any shop which offers for sale, a film that explicitly depicts:

(1) Contact between any part of the genitals of one person and the genitals, mouth, anus, or genitals of another person;

(2) Contact between a person's mouth, anus, or genitals and the mouth, anus, or genitals of an animal or fowl;

(3) Manipulation of a person's genitals;

(4) Defecation, or;

(5) Urination."

The plaintiff contends that the ordinance constitutes a violation of its first amendment right to free speech. The defendant contends that the ordinance is a valid exercise of its police power and was designed to preserve the quality of life in North Little Rock and to preserve the integrity of its neighborhoods. In support of this proposition, the defendant cites Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

The Supreme Court in Young, supra, held that a zoning ordinance which required that adult theaters not be located within 1,000 feet of each other was not violative of the first amendment right of free speech. Such ordinance, it found, since it purported to minimize the destructive effects of such theaters on the community, was within the power of the City to enforce. The Court accepted the proposition of the City of Detroit that adult theaters, especially in concentration, have serious, unacceptable consequences in a community. These consequences include an undesirable quantity and quality of transients, adverse effects on property values, an increase in crime, especially prostitution, and encouraging residents and businesses to move elsewhere. 96 S.Ct. at 2445. The Supreme Court agreed with the District Court that the Detroit ordinance "represented a rational attempt to preserve the city's neighborhoods." Id.

It is well settled that speech, even "pure speech," may become "conduct" when it adversely affects the rights, safety, health, or welfare of others. Justice Holmes' example in Schenk v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), is well known:

But the character of every act depends upon the circumstances in which it is done. Citations omitted The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Citations omitted The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

However, the ordinance in question does not proscribe speech which has taken on the character of conduct. Rather, its purpose is to protect and preserve the neighborhoods and quality of life in the City of North Little Rock. As pointed out by Judge Celebrezze in his dissent to American Mini Theaters v. Gribbs, 518 F.2d 1014 (6th Cir. 1975), ordinances such as Ordinance No. 5169 are "valid `time, place and manner' regulation," not restrictions of speech on the basis of content. Judge Celebrezze's views were, of course, adopted by the Supreme Court in Young v. American Mini Theaters, Inc., supra. He stated:

I do not view the 1000-foot provision as a regulation of speech on the basis of its content. Rather, it is a regulation of the right to locate a business on the side-effects of its location. The interest in preserving neighborhoods is not a subterfuge for censorship.

518 F.2d at 1023.

The Court finds that North Little Rock Ordinance No. 5169 does not seek to prevent the showing of adult films in the City of North Little Rock, but merely to prohibit the establishment of theaters...