ALBUQUERQUE, N.M. — What one eminent constitutional scholar has dubbed “erogenous zoning” – permitting cities to impose different requirements on adult theaters than on mainstream theaters – does not apply to the Guild Cinema’s occasional “Pornotopia” film festival, the New Mexico Supreme Court said Thursday.
That means the Guild, an Albuquerque art house theater, is not an adult amusement establishment and did not commit a zoning violation, according to the 4-1 ruling. Chief Justice Petra Jimenez Maes dissented.
The opinion reverses prior rulings by the New Mexico Court of Appeals and 2nd Judicial District Judge Carl Butkus, who said the city did not violate the festival organizer Panagea’s free speech rights by citing it and imposing a $500 fine for the violation.
Because the court decided based on the zoning issue, it said that it did not reach the constitutional issues raised by the theater. The Guild was represented by American Civil Liberties Union attorneys Laura Schauer Ives, its legal director, and Kari Morrissey.
Ives called the decision a “victory for free speech.”
“In essence, the court has said that the city cannot limit speech, even speech it doesn’t like, without actual justification,” she said.
Assistant City Attorney John DuBois, who argued for the city in February, said in a statement that the court had “found that our city ordinance was not specific enough to prohibit a one-time showing of pornographic film during a festival.”
During oral argument, he told justices the issue wasn’t whether a pornographic movie could be shown to citizens, but rather where it could be shown,
The film festival took place over a November weekend in 2008 and was deemed a commercial success by the Nob Hill Business Association, which said it was pleased with the caliber of customers attracted to the area and the lack of crime and other negative effects. Except for that weekend, the theater showed nonpornographic films.
The city zoning department, however, saw it differently.
The city code defines an adult establishment as one that provides “entertainment featuring … films, motion pictures … or other visual representations or recordings characterized or distinguished by an emphasis on … specific anatomical areas or … specified sexual activities.”
The theater is on Central Avenue in Nob Hill and typically features independent and foreign films. It is in an area zoned for “C-2/community commercial,” where the city disallows adult amusement establishments.
The majority opinion by Justice Edward Chávez said that did not include theaters “that rarely or only occasionally feature adult entertainment.”
Although the ACLU took the position that the theater’s conviction violated Pangaea’s state and federal constitutional right to free speech, the court said it was deciding “consistent with our responsibility to interpret ordinances to avoid constitutional concerns.”
The opinion says the U.S. Supreme Court has upheld different zoning rules for adult theaters, crediting Harvard Law professor Laurence Tribe for coining the term “erogenous zoning” to describe it.
Such ordinances are considered valid if they are content-neutral, narrowly tailored to serve a significant government interest and allow plenty of room for alternative communication of the information.
“Cities carry a light evidentiary burden in justifying these ordinances, and they have some flexibility in designing them,” the court said. While the evidence the city relied upon to pass the ordinance was not specified, it said, the language is similar to that in ordinances upheld in other cases. The Guild lacks the trappings of other adult theaters, such as billboards or signs proclaiming “Girls! Girls! Girls!” or “XXX.”
“In short, while the city of Albuquerque may believe that adult theaters cause negative secondary effects, the Guild is not an adult theater in either function or appearance,” the court said.
Peter Simonson, executive director of the ACLU of New Mexico, said it was a common-sense decision.
“Hosting one erotic film festival does not make the Guild Cinema an ‘adult amusement establishment’ any more than a club that plays jazz music one night out of the year is a ‘jazz club,’ ” Simonson said.
