City of Portland v. Tidyman

JONES, J.,

specially concurring.

I specially concur in the majority opinion because it keeps faith with what we said in State v. Henry, 302 Or 510, 525, 732 P2d 9 (1987), that a local government or state may reasonably regulate the nuisance aspects of adult “material” in “the interests of unwilling viewers, captive audiences, minors and beleaguered neighbors.” The majority opinion does not rule out an ordinance which meets minimum constitutional standards.

The City of Portland may have lost this original skirmish to regulate these businesses it considers undesirable, but not the battle against them if it chooses to re-engage. The basic problem with the ordinance is that it is directed to the speech or expression aspects of these businesses rather than to the nuisance created by the businesses. Because the statute is aimed at the wrong target, it shoots wide of the mark.

The ordinance as it is written could apply to practically every neighborhood video rental outlet, although it seems certain that the city does not wish to regulate them in the same fashion. While we sit in isolation, we are not blind to the reality of the present world that a substantial portion of neighborhood video stores, generally accepted as part of our legitimate urban and suburban business environment, contain “R-rated” video tapes depicting the statute’s “specified sexual activity and or nudity.” This city ordinance does not distinguish between “R-rated” and “X-rated” materials. Obviously, the drafters of the ordinance were seeking to regulate what is commonly called hard-core pornography, or the so-called “X-rated” materials. However, this ordinance covers not only those materials, but expressions which are seen, heard and are available in virtually every theater, bookstore or video outlet (adult or otherwise) in this state.

If a city chooses to zone out or zone in adult bookstores, or otherwise regulate them, the city can do so by specifying in advance, in the text of the ordinance, the nuisance it intends to eliminate, such as: that these adult bookstores attract prostitutes, pedophiles and other perverts; and that they create health and sanitary problems and the like, thus “beleaguer[ing]” neighbors with a nuisance. The ordinance must address these secondary characteristics of the adult material and not the adult materials themselves. If the problem of adult bookstores persists, the city should have no difficulty demonstrating the objectionable or threatening effect of the operation of such businesses. The city no doubt can document the nuisance effect of “adult” bookstores from its own past experiences.

In sum, the majority opinion is more directive than restrictive. The speech and expression that creates a nuisance can be reasonably regulated in time and place. The City of Portland and any other local government can, if it chooses, regulate adult bookstores.