To date the Supreme Court has endorsed two approaches that municipalities may adopt when attempting to handle the problem of zoning adult businesses in communities that are opposed to the expression of that manner of free speech. In Young v. American Mini Theatres, 427 U.S. 50 (1976), the Court upheld portions of a Detroit “Anti–Skid Row Ordinance” that required that certain adult establishments not be permitted within 1,000 feet of another regulated establishment. This approach—which this Article calls “cracking” for shorthand—was deemed a permissible zoning regulation despite the incidental burdens it placed on speech, in part because the Court was willing to find that the government’s interest in regulating the negative “secondary effects” that accompanied such establishments was a “legitimate government objective.” A decade later, the Court also upheld a similar zoning ordinance in Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), also on the grounds that such regulation of “secondary effects” was a permissible justification for burdening speech. However, the solution proposed in the ordinance at issue in Renton was markedly different than that offered in American Mini Theatres: it promoted concentrating the establishments in one zoned area rather than dispersing them—“packing” the establishments for short. This Article is the first to evaluate the relative effectiveness and desirability of the “cracking” versus “packing” approach from a law and economics perspective. To do so, this Article evaluates which approaches were in practice adopted by communities on the ground in the years since the Supreme Court advanced the secondary effects doctrine and explores the benefits and drawbacks of each approach from an efficiency standpoint. This Article suggests that cities are being disingenuous in explaining their motivations for overwhelmingly adopting the “cracking” approach.
Volume 86, No. 3, Spring 2014