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in considering a similar ordinance, the supreme court held in city of renton v. playtime theatres, inc., 475 u.s. 41, 106 s. ct. 925, 89 l. ed. 2d 29 (1986), that an ordinance restricting the location of adult theaters to areas zoned for industrial use was constitutional. the ordinance at issue in that case contained certain zoning provisions similar to those of the ordinance we are considering here. the court noted that the renton ordinance did not favor any particular viewpoint, but, rather, was content neutral. the court held that the ordinance was constitutional because it regulated the location of the theaters and left open alternative avenues of communication, and thus was a reasonable time, place, and manner restriction.

in the case before us, the ordinance is similar to the ordinance upheld in renton, in that it regulates the location of adult theaters and leaves open alternative avenues of communication. furthermore, the ordinance here is content neutral, and its purpose is to protect citizens from the adverse secondary effects of adult theaters. it is not a regulation of speech.

in dismissing plaintiff’s action for a declaration that the ordinance was unconstitutional and that it had been applied in a manner that violated plaintiff’s constitutional rights, the majority concludes that plaintiff lacked standing to challenge the constitutionality of the ordinance because it could not show that the ordinance would be applied to prohibit the distribution of its adult film theatres. i agree that the plaintiff lacks standing to challenge the constitutionality of the ordinance because it cannot show that the ordinance would be applied to prohibit its distribution of adult films. however, this is not the only basis upon which i conclude that plaintiff lacks standing to challenge the constitutionality of the ordinance. the majority concludes that plaintiff lacks standing to challenge the ordinance on the basis that it cannot show that the ordinance would be applied to prohibit the distribution of its adult film theatres. the majority also concludes that plaintiff lacks standing to challenge the ordinance because it cannot show that it has a reasonable likelihood of future prosecution under the ordinance.

see also: bigelow v. virginia, 421 u.s. 809, 95 s. ct. 2222, 44 l. ed. 2d 600 (1975) (state statutes that made the distribution of obscene materials to juveniles criminal offenses subject to prosecution under criminal libel statute and other state criminal statutes, were unconstitutional for vagueness and overbreadth); miller v. california, 413 u. 15, 93 s. 2607, 37 l. 2d 419 (1973) (state obscenity statute imposing criminal penalties on the distribution of obscene material to minors was overbroad, vague, and an unconstitutional prior restraint on freedom of speech); stanley v. georgia, 394 u. 557, 89 s. 1243, 22 l. 2d 542 (1969) (state statute making it a criminal offense to sell or exhibit to minors indecent postcards and obscene material violated the first and fourteenth amendment). the court struck down the statutes because they were vague and overbroad and granted injunctive relief to the plaintiffs. the court also found that the materials fell into the “genuinely exempt” category of expression. the court noted that the films had a place in the “historical record” that could not be suppressed. although the court never explicitly stated that the films fell within the “archetypal first amendment sanctuary” of the home, the court gave the impression that the films at issue were protected by the first amendment.
see also: geiger v. allen, 418 u.s. 910, 94 s. ct. 3202, 41 l. ed. 2d 1156 (1974) (state obscenity statute making it a criminal offense to distribute obscene materials to minors unconstitutional because it was too vague and overbroad and because it chilled protected expression); young v. american mini theatres, inc., 427 u. 50, 96 s. 2440, 49 l. 2d 310 (1976) (state obscenity statute prohibiting the showing of obscene materials within 1000 feet of a place to which minors are generally admitted was unconstitutional because it was vague and overbroad and could be applied to films shown in a theater that only admitted adults). the court struck down the statute because it was vague and overbroad and granted injunctive relief to the plaintiff. the court also found that the materials fell within the “genuinely exempt” category of expression. the court noted that the films had a place in the “historical record” that could not be suppressed.
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