Sex and the Cities

The rule of law and the gelding of urban America

An old slogan favored by environmentalists enjoins us to remember that "we do not inherit the earth from our ancestors; we borrow it from our children." In a better world, each mayor of New York City would append to his oath of office a corrolary: "I do not run this city; I merely lease it from Lou Reed."

Under Michael Bloomberg, alas, my erstwhile home continues its gradual transmogrification into a theme park parody of itself: ManhattanLand, an island of smokeless, sterile cafes where Times Square is a wholly owned subsidiary of the Disney corporation.

While the news focuses on the neopuritanism of those who see unhealthy living as the cardinal sin, New York's transformation began with a dose of the more old fashioned sort: zoning regulations, which overcame a spate of court challenges in 1998, forbidding adult shops from operating within 500 feet of schools and (tellingly) churches. In hyperdense Manhattan, that amounted to a de facto ban in many neighborhoods. It wasn't just trenchcoated old men who doubted the value of the change: the new rules prompted lesbian electropunk band Le Tigre to complain on their eponymous 1999 album: "Giuliani / He's such a fucking jerk / Shut down all the strip clubs." But that wasn't altogether accurate: as Reason noted in a 2001 article on the porn crackdown, a little editing on the marquees of nude dancing joints turned "topless" into "stopless," and adult stores managed to comply with the letter, if not the spirit, of zoning regulations by filling floor space with unwanted junk to meet the requirements of the city's new "60-40 rule" mandating that the bulk of many stores' stock comprise non-adult materials.

But as The New York Timesreports this week, the city is unwilling to let trivialities like technical compliance with the law stand in the way of the city's purification. With the approval of Bloomberg—who is quoted in the Times story as telling participants in a community meeting, "I wouldn't want a porn shop in my neighborhood and you shouldn't have one in yours"—building inspectors have singled out adult businesses for special attention, issuing a barrage of citations for such picayune violations as improper lighting on exit signs, cigarette butts on shop floors, or insufficient soap in bathrooms. The city's inexhaustible cache of micromanagerial regulations all but insures that each business can be found guilty of something, and it's hard not to recall the scene in which one of Ayn Rand's pulp villains declares:

Did you really think we want those laws observed? […] There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

The effort is not entirely dissimilar from efforts by neighborhood associations in my current stomping grounds, Washington D.C., to use a byzantine liquor licensing system as leverage to bully bar and nightclub owners into accepting "voluntary" agreements that limit the businesses in a host of ways not connected in any direct and obvious way with the serving of liquor.

Legislators hope to close up the "loopholes" in existing regulations, obviating the need to subject the rule of law to such pornographic violations. But the zoning laws themselves are of dubious constitutionality, even apart from the suspicious specification of churches as zones to be kept free of pornographic taint by the force of law. The Supreme Court has ruled that zoning restrictions don't run afoul of the First Amendment so long as they are meant to remedy "secondary effects" of porn shops, such as the tendency for prostitutes to cluster there in search of johns.

But those secondary effects are often hard to disentangle from negative attitudes toward the content of the material peddled there. Consider, for instance, the "secondary effect" of diminished property values. That certainly seems like—indeed, is—a perfectly concrete harm. Yet what does it mean, ultimately, for property values to be reduced? Only that some significant portion of real estate buyers prefer not to live near adult businesses, a preference which may largely amount to no more than a subjective disapproval of dildoes and porn DVDs. The preference is as valid as its reverse, naturally, but ought it win the support of law? There was a time—doubtless in parts of the country it is still that time—when more than a few minority families moving into a neighborhood would have a similar effect. Would anyone see a "secondary effects" rationale grounded in an argument from property values in that case as anything but a transparent effort to enforce bigoted preferences indirectly by an appeal to their manifestation in market prices?

Equally suspect is the blanket nature of the ban, which doesn't demand that any particular business be shown to produce these deleterious "secondary effects." The Times notes that many New Yorkers complain about "marital aids" (that is, dildoes), not covered under current law. Should that change, business like Toys in Babeland, a feminist sex shop unlikely to attract the trenchcoat set, could scarcely hope to be exempt.

Given the city's highly discretionary approach, Toys in Babeland might manage to escape prosecution as a practical matter… for a while. But is that really consistent with the spirit of New York either? Should Manhattanites countenance a regulatory labyrinth so tortuous that none who earn the disfavor of neighbors bored or disgruntled enough to keep the building inspectors on autodial can hope to escape? So far, it seems, they have. But New York's great vitality comes from its willingness to serve as a haven for the weird, for the sexual deviants, for those who've fled the uncomfortable gaze of the clucking Gladys Kravitz neighbors from small towns around the country. It will be a diminished city if it becomes a haven only for Disney characters.