On February 25, 1986, the Supreme Court of the United States hands down a decision affirming the right of local jurisdictions to regulate the location of adult-entertainment venues. The case is brought by the City of Renton against the owner of Playtime Theatres, Inc., who has been presenting pornographic films at The Renton Theater in downtown Renton, located in King County south of Seattle. The historic ruling becomes a benchmark for local governments seeking to curb adult entertainment and its secondary effects.
The Renton Civic Theatre is a performing-arts venue located in a vintage movie theater on S 3rd Street in the heart of downtown Renton. Since its founding in 1987 it has presented plays, musicals, cabaret, and stand-up comedy. For a brief period in the early 1980s, however, the old theater offered up a different type of entertainment -- hardcore pornography.
But let's go back a bit further.
In 1981, the small but growing city of Renton (population 32,000 at the time and home to a Boeing airplane plant) took a look at the landscape of adult entertainment. It was, by some accounts, the "golden age of pornography," during which professionally-produced films such as Behind the Green Door and The Devil in Miss Jones were discussed openly and, of course, making tons of money. With home video still in its infancy, adult movie theaters began cropping up around the country. The outcry against porn came from the religious right, in the shape of Jerry Falwell's Moral Majority, some (but not all) feminist groups, Ronald Reagan, and many ordinary citizens. Others viewed porn as free speech, perhaps even sex-positive.
Many jurisdictions found themselves dealing not only with community disapproval of obscenity, but with what were termed the "secondary effects" of adult entertainment: blighted areas of adult book stores, dance clubs, peep shows, and other unsavory establishments.
In some cities, including Seattle and Boston, the solution was to circumscribe the area in which such activities would be allowed. (In Seattle it was 1st Avenue downtown.) In others, notably Detroit, authorities opted to require that such facilities be dispersed throughout the city. The Detroit ordinance was defended successfully before the Supreme Court in 1976. That case, Young v. American Mini Theatres, Inc., would become key to arguing for the Renton ordinance.
Renton decided to get out in front of the problem; City Ordinance No. 3526 was passed on April 13, 1981, before any adult movies were shown in the city. Perhaps there had been rumors. Perhaps it was coincidence that by the end of the year porn mogul Roger Forbes and his business, Playtime Theatres, Inc., had acquired the use of two vacant movie houses across the street from each other on South 3rd Street in what was then the heart of the city's commercial district. The Renton and Roxy were venerable theaters built in the 1920s and 1930s. Shortly thereafter, Forbes announced his intention to screen adult films at The Renton.
The ordinance, titled "Adult Retail and Entertainment," prohibited placement of adult theaters within 1,000 feet of a church, park, or residence, and within a mile of a school. The last restriction was lowered to 1,000 feet in a 1982 amendment to the ordinance. Nonetheless, the restrictions effectively outlawed adult films in the business district and in all residential neighborhoods. Defenders of the law pointed out that there was a zone on the outskirts of town, approximately one square mile in size, in the industrial area that would do just fine for adult entertainment.
Roger Forbes and his longtime attorney Jack Burns were aware of the Renton ordinance and prepared to fight for their rights. Before any film was shown, they filed suit in U.S. District Court challenging the constitutionality of the ordinance with arguments based on the First Amendment (the right of free speech) and the 14th Amendment (the right not to be deprived of property without due process).
Jack Burns summed up their position:
"If such ordinances can be imposed any time city officials find a threat of 'moral degradation,' they could well try to ban the tabloid magazines that are sold at grocery store counters. Most cities show no regard for the First Amendment when it is politically expedient" ("Important Guidelines ...").
Taking It to the Streets
With encouragement from City Hall and Renton Mayor Barbara Shinpoch (1931-2005), a group of residents banded together to protest the incursion of adult entertainment into the Renton core. Led by a young mother and community organizer, Kathy Keolker, Citizens for a Quality Community (CQC) held rallies, picketed the theater, circulated petitions, collected letters of support, and kept the issue in front of the media.
"Anytime the city was doing any action legally, we showed up at City Hall and we continued to support them. We testified at City Hall all the time. We just kind of kept the pressure on the city to keep going because there were some city council members who were getting kind of tired of the issue and the expense" (Keolker interview).
Their secret weapon?
"We had a phone tree. That was before email. We could get the phone tree going and we could easily get 100 people at a meeting within 24 hours if we needed it" (Keolker interview).
Folks were drawn to the movement for a variety of reasons. Some were religious conservatives; some business owners concerned about property values. Some feminists saw porn as exploitation of women; others were concerned about the effects on children who might pass the theater on the way to school. Keolker had to work to keep the focus on zoning as the issue in question.
Taking It to the Courts
The fight over adult movies in Renton unfolded on two tracks: the city, with the help of the CQC, took a stand on its zoning ordinance, insisting that the issue was not one of limiting free expression, but rather one of protecting the interests of the community from the secondary effects of pornography. This was the city's stance as the Playtime case wound its way through the federal courts.
Parallel to the federal court case, when Roger Forbes defied the ordinance by showing films like Debbie Does Dallas and Deep Throat, the city went to King County Superior Court in the spring of 1984 seeking an injunction against him.
Superior Court: Judging Obscenity
Unlike the federal case, the superior court case turned on the definition of obscenity. A decade earlier in Miller v. California the U.S. Supreme Court had held that materials were obscene if they "portray[ed] sexual conduct in a patently offensive way " and also lacked "serious literary, artistic, political, or scientific value" (Miller, 413 U.S. at 24). The exact interpretation of this ruling was left to local jurisdictions.
Larry Warren was the city's lead attorney at the time. In a 2018 interview he recalled how the city's request for an injunction turned into a full-blown obscenity trial when Judge Nancy Holman decided to seat an advisory (non-binding) jury. If the jurors found the films obscene, they would not be entitled to First Amendment protection, or so the argument went. To make the determination, the jurors were treated to a full viewing of 10 pornographic films in Forbes's repertory.
Warren vividly remembered the spectacle:
"The jurors were taken down by bus and they parked over at the old City Hall parking lot. They walked down to The Renton Theater and were met on the way by television cameras, and they were hiding their faces. I took note of that because it became a key part of my final argument and then we went into the theater and they had to watch the ten movies. It took three and a half days.
"They filed into the theater just as if they were going into a jury box. And after the first movie they scattered: the older ladies went as far away as they could into one corner. The younger men went one direction. The older men went in another direction. There was a couple that hovered in the middle who didn't know who they wanted to be with, which I thought was telling" (Warren interview).
Having slogged through 10 blue movies and reviewed the definition of obscenity as outlined in Miller v. California, the advisory panel found four of the 10 obscene. Judge Holman went one better and declared that, as there was little difference in the films, all were obscene. Her judgment, in March, became the basis for an injunction against Forbes that was granted that May.
A Federal Case
Meanwhile, back in federal district court, Judge Walter T. McGovern ruled the Renton ordinance constitutional in February 1983, but it was a short-lived victory for the city. A year later Roger Forbes won a hearing before the Ninth Circuit Court of Appeals. Larry Warren argued the case for the city, inviting his wife and son to watch. It was, he said, a "bloody slaughter" (Warren interview). The three-judge panel, sitting in Seattle, struck down the ordinance on November 28, 1984, questioning Renton's motives for wishing to ban adult movies.
Stung by the defeat at the Ninth Circuit, the city turned to the court of last resort, submitting a petition for a writ of certiorari, or a request to review, to the Supreme Court of the United States. Of thousands of such requests made each year, the Supreme Court agrees to hear approximately 2 percent. Renton made the cut; oral arguments were scheduled for November 12, 1985.
Larry Warren and his team made a decision to hire a Washington, D.C.-based attorney experienced in arguing before the high court. E. Barrett Prettyman Jr. had earned a reputation as a tough talker when negotiating the release of American prisoners from Cuban jails following the disastrous Bay of Pigs invasion in 1962; more recently, he had served as the lead attorney in the U.S. House of Representatives investigation of the Abscam scandal in 1981.
Arriving at the Supreme Court Building, Warren found it filled with would-be spectators. Kathy Keolker and representatives of CQC were in attendance, as was Roger Forbes. In accordance with standard procedure, each side was given half an hour to make its case, with the city, as the petitioning party, going first. Prettyman argued the city's case and Jack Burns laid out the case for Forbes.
The justices focused a great deal of attention on the possibility of alternative siting for an adult theater. Jack Burns responded by suggesting that Renton was jumping to conclusions about the effects of a single theater in the city and that specific problems, such as traffic or transients, could be dealt with if and when they occurred:
"I think we have to ... solve these problems that deal with First Amendment concerns by the least intrusive means. You do not take a sledge hammer when a scalpel will do" ("Oral Argument ...").
Warren recalled the moment he believes the case turned in their favor:
"Burns said that we were talking about the negative secondary effects of these films, but that there really were no negative secondary effects. 'You know, the people who go in to see those movies are really no different than you or I,' and two or three of the Justices said 'Oh no, not me!' And he just totally lost them right there.
"We knew we'd lost Brennan and Marshall before we ever went into court, because they always voted the most expansive way they could on the First Amendment. So we had to get five of the remaining seven. And we're counting people. And I said, 'I think we got six.' And somebody said 'We might even have gotten seven'" (Warren interview).
"Time, Place, and Manner"
In fact, the Court's decision, handed down on February 25, 1986, was split, with six in favor of Renton's case, one concurring, and two opposed -- in effect, a seven-to-two decision. The constitutionality of the ordinance was upheld.
Justice William Rehnquist penned the majority opinion. Citing the 1976 Detroit case, Rehnquist wrote:
"The Renton ordinance, like the one in American Mini Theatres, does not ban adult theaters altogether ... [It] is therefore properly analyzed as a form of time, place, and manner regulation ... [Such] so-called 'content-neutral' time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication" (City of Renton, 475 U.S. at 46-47).
The Court's majority agreed with the city's arguments that the ordinance was not an assault on free speech since there were alternative locations where adult films could be shown, i.e. the industrial area on the outskirts of town. The ordinance was "designed to serve a substantial government interest." It was "content-neutral," because it targeted the "secondary effects" of adult theaters on the surrounding community, not the films themselves. Further, the Court affirmed that Renton need not have conducted studies of secondary effects but could rely on such studies conducted in other places.
Justices William Brennan and Thurgood Marshall disagreed with the majority, contending that the ordinance was not "content-neutral," but, in fact, targeted a specific form of speech.
Larry Warren heard of the Court's decision when he was contacted by a reporter at home in the wee hours of the morning. Asked for a statement, he replied "Well, my statement is: I'm very pleased!" (Warren interview).
As news of the city's victory spread, a number of other jurisdictions called upon Warren and his staff for advice on moving forward with ordinances of their own. Local cities, including Des Moines, Kent, Everett, Redmond, and Bellevue, had kept a close eye on the case.
Roger Forbes gave up his interest in the Renton and Roxy theaters but continued his business operations elsewhere. As of 2018 he was a partner in Déjà Vu, the self-proclaimed "#1 Erotic Entertainment Chain in the World." He was also in the midst of a battle to be allowed to develop property he owned on Seattle's 1st Avenue that was home to the historic Showbox Theater, which he planned to sell to a Canadian developer.
The live-performance Renton Civic Theatre leased the boarded-up Renton Theater building in 1987, shortly after the Playtime case; the not-for-profit organization purchased the theater in 1993 and restored its art deco lobby. As of 2018, the Roxy was being used as a church.
Kathy Keolker was elected to the Renton City Council in 1983 and served as Renton mayor from 2004 through 2007. One of her proudest memories is of attending the Supreme Court hearing in 1985: "Getting to see the culmination of all these years of work, it was just such an emotional moment" (Keolker interview).
Larry Warren retired from the city in the spring of 2018 after 43 years of service to Renton.
The city of Renton has tripled in size since the Playtime Theatres case, to a population of more than 100,000. No one has taken up the offer to show adult movies in the unrestricted zone, although one can find other forms of adult entertainment there.
City of Renton v. Playtime Theatres, Inc. remains on the books. The Supreme Court oral arguments in the case can be heard online.