The replacement of the traditional marquee messages on New York City's 42nd Street with off-putting, sometimes shocking, slogans happened quickly. Where a world-famous walkway of sexual entertainment had once promised "Peep Shows!," "Lesbian, Bondage, European," and "All Nude All the Time," a disconcerting wave of government-sponsored modern-art phrases began to appear. "Is this true or only clever?" asked one. Another said, "All art is either revolution or plagiarism." The slogans graced the otherwise barren fronts of buildings the city government had bought or condemned.
This was the most visible manifestation of the city's ongoing effort to eliminate most of the adult entertainment outlets near Times Square--establishments such as Courageous Books, Peep O Rama, and the Adult Entertainment Shopping Center--and create a more family-friendly area for hotels and mainstream theaters, encouraging new investment. Already, a children's theater has opened on what was once the 42nd Street walk of porn.
Severe restrictions on New York City's remaining adult video stores, book shops, movie theaters, peep shows, strip clubs, and topless bars were scheduled to take effect on October 25. A state Supreme Court justice rejected a constitutional challenge on October 23, but implementation of the rules was delayed pending appeal. Under the ordinance, which the City Council approved by a 41-9 vote in October 1995, adult entertainment establishments are largely banished to outer boroughs, waterfronts, and commercial zones. They are not allowed to operate within 500 feet of each other or within 500 feet of schools, places of worship, or residential areas. The city predicts that fewer than 30 of 177 known sexual entertainment outlets in New York will be permitted to remain at their current locations. That means closing or moving more than 80 percent of the businesses.
For purposes of regulation, the law defines pornography (in part) as visual materials or live performers displaying any of the following: human genitals during sex or in a state of arousal; "actual or simulated acts of masturbation, intercourse, or sodomy"; or "specified anatomical areas," including "human male genitals in a discernibly turgid state, even if completely and opaquely concealed." A video or book store with more than 40 percent of its stock devoted to such material qualifies as an adult entertainment establishment. The rules would not affect mainstream entertainment stores with small porn sections, such as the new Virgin Megastore at Broadway and 45th Street (despite its suggestive name). The ordinance follows the state's definition of strip clubs and topless bars, based on the degree of undress and the proximity of performers to customers.
The owners of these businesses are not taking the city's edict lying down. Seventy- seven of them have hired Manhattan lawyer Herald Price Fahringer to challenge the ordinance on First Amendment grounds. Fahringer asks, "If somebody said we want to do all this [redevelopment], but we don't like all these kung fu movies and violent films--how large a step is it?" Norman Siegel, executive director of the New York Civil Liberties Union, is also challenging the law. He represents Rachel Hickerson, a member of Feminists for Free Expression who is suing as a consumer of pornography. (She goes to strip clubs and watches adult videos.) Fahringer and Siegel emphasize that the fare offered by businesses such as Peepland Adult Center and Dangerous Curves is constitutionally protected. While the U.S. Supreme Court has upheld bans on "obscenity," in a city like New York little or nothing falls into that category, which is defined according to community standards.
Although the city may not impose an outright ban on adult entertainment, the Supreme Court has upheld zoning restrictions on such businesses, so long as the rules are not prohibitive. The challenges mounted by Fahringer and Siegel therefore hinge largely on issues such as the costs borne by businesses forced to move and the feasibility of the alternative locations permitted by the city. "They've said, You go to the piers, the wetlands in Staten Island, the outer reaches of Queens and Brooklyn," complains Fahringer. He says some of the areas designated for adult establishments have "no roads and no sidewalks," which means that merchants who rent their current spaces might have to spend hundreds of thousands of dollars for construction if they relocated. "The Supreme Court has held that you've got to make reasonable accommodations," Fahringer notes. "That's an important issue that I think we should ultimately prevail on."
Siegel concedes that zoning restrictions have been upheld before, but he argues that "the new regulations are more repressive, more restrictive. We think the previous decisions were wrongly decided, but even if they weren't the new rules are unconstitutional." The city is relying largely on the 1989 New York State Court of Appeals decision Town of Islip v. Caviglia, which allowed the town to restrict the growth of red-light districts without banning them. "In that case, though, all the existing businesses survived," notes Siegel. "In our case, most of them wouldn't."
Some residents of neighborhoods where displaced porn outlets will be allowed to relocate are not happy with the plan either. In one Chinese neighborhood in Brooklyn, there has been talk of combating an encroaching sex zone by opening more churches, making the creation of new adult entertainment establishments geographically impossible. Some of the boroughs likely to see an influx of fugitive sex shops have already fought local porn battles. In Brooklyn, the nude dance club Steam Heat has been at the center of a protracted building permit dispute, and in Queens protesters have sought to curb the spread of clubs such as Wiggles and Naked City.
Times Square, on the other hand, has been a red-light district since the Depression era, when Mayor Fiorello LaGuardia fought to shut down a small empire of burlesque houses run by Bill Minsky. There is little pretense that the new rules are aimed at preserving a cozy residential neighborhood in Times Square. Mayor Rudolph Giuliani, who has long promoted the porn restrictions, is eager to make parts of New York City more attractive to major businesses, whether by shutting down street vendors and flea markets, intervening in neighborhood disputes over the opening of big chain stores, or seizing control of mob-influenced truck unloading operations at the Fulton Fish Market. The porn re-zoning puts Giuliani squarely on the side of big investors such as Disney, which has already renovated the large New Amsterdam Theater near Times Square, and against another industry with mob ties and an unwholesome reputation.
Al Goldstein, editor of Screw magazine, sees the new regulations as yet another assault in the war against sexual expression. Goldstein was recently involved in a porn- defending lawsuit himself, arguing along with stripper and TV host Robin Byrd that the adult programming on Manhattan's "commercial use" cable channel should not be scrambled. "New York will always be a Neanderthal [place] because politicians are at the helm here," he says. "Politicians run the city, and they're whores. They give real prostitutes a bad name." Goldstein doesn't expect anything momentous to happen as a result of the ongoing court battles over the new rules. Instead, he sees the dispute as a footnote to an age-old social struggle. "Remember, the Puritans left England and came to America," he says. "We're a sex-hating, body-hating culture."
But New York politics is rarely as simple as free speech vs. prudery. The city routinely uses land-use regulations to favor certain interests over others, and many quieter zoning battles go largely unnoticed. At the same time that the porn restrictions were making news, for instance, a struggle was going on over whether to re-zone Eighth Avenue to allow the sale of retail items that require large cardboard boxes. Large cardboard boxes, of course, don't spark the kind of First Amendment debates that porn does.
Walter McCaffrey, one of the City Council members who voted for the new porn rules, says the focus on "secondary impact" problems and the availability of alternative locations for affected businesses should satisfy First Amendment concerns. "Basically," he says, "the quality of life in the area had been jeopardized by a whole host of low-level crimes and a decrease in property values." Gretchen Dykstra, president of the Times Square Business Improvement District, takes a similar position. "If you open a bowling alley," she says, "it doesn't necessarily discourage opening a supermarket next door. Pornography does....If you let the market rule on this issue, you'll see that the pornographers move into areas with depressed property values near transportation hubs....You then destroy the neighborhood." The new rules mean "no neighborhood ever has to become a red-light district," she says. "I think this was crucial to the renovation," the single biggest step toward removing Times Square's "quality of life problems and image problems."
Fahringer, the sex shop lawyer, doesn't buy the quality of life argument. "There's no evidence that the adult establishments result in negative secondary effects," he says. "The city did a study a couple of years ago that showed no rise in crime or decline in real property values." Although the secondary effect studies are ambiguous--adult establishments may simply help worsen the reputations of already declining neighborhoods--most New Yorkers would concede that Eighth Avenue is pretty creepy at night.
But businesses offering sexually explicit entertainment don't have to be loud, intrusive, and offensive to passers-by. Contrast, for instance, the garish, in-your-face facade of Show World Center on Eighth Avenue near 42nd Street with the relatively demure exterior of the Private Eyes strip club around the corner (or, for that matter, the atmosphere at a neighborhood video store or newsstand that happens to sell pornography). Even Goldstein says greater discretion on the part of porn merchants might be a good way to avoid conflicts. "I don't want this stuff forced on people," he says. Right now, parts of Eighth Avenue look like a neon-drenched Las Vegas of porn. Manhattan Borough President Ruth Messinger has suggested using milder rules to address aesthetic concerns and any low-level crime problems while avoiding the constitutionally shaky route of shutting down porn shops. Existing sign regulations and public nuisance laws could be more strictly enforced to discourage lewd storefront posters or drunken patrons.
Messinger is especially concerned about the possible impact of the ordinance on gay- oriented businesses. Members of the gay activist group Empire State Pride Agenda have criticized the new rules, saying they threaten to shut down businesses that provide condoms and AIDS information in addition to pornography. Although the main intent of the law is to transform red-light districts, not Greenwich Village, New York City's gay community, which saw decades of repressive bar raids, has learned that sweeping laws passed for one purpose can later be selectively enforced for another.