Association of Club Executives of Dallas, Inc., et al. v. City of Dallas, Texas

The secondary effects doctrine of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), provides that regulations adopted for the content-neutral purpose of mitigating the claimed adverse secondary effects associated with businesses offering sexually oriented expression are subject to intermediate scrutiny. Does that doctrine survive Reed v. Town of Gilbert, 576 U.S. 155 (2015), and City of Austin v. Reagan National Advertising of Austin, LLC, ___ U.S. ___, 142 S.Ct. 1464 (2022), which hold that facially content-based laws are subject to strict scrutiny, regardless of their content-neutral justifications?

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), is a plurality decision addressing the evidentiary burdens under the secondary effects doctrine, which the lower courts have struggled to apply. In this case, Petitioners presented extensive evidence challenging the City’s rationale for an ordinance requiring sexually oriented businesses to close between 2:00 a.m. and 6:00 a.m. The district court found that evidence to be compelling and granted a preliminary injunction. The Fifth Circuit vacated the injunction, holding that the district court held the City to too high a standard. Thus, if the secondary effects doctrine survives, the question presented is what quantum of evidence is sufficient to cast doubt on a municipality’s rationale for such an ordinance, under the plurality opinion in Alameda Books?

Justice Kennedy provided the fifth vote for reversal in Alameda Books, and the lower courts have uniformly held his concurring opinion is controlling under Marks v. United States, 430 U.S. 188 (1977).