Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The government may also take notice of objective conditions attributable to the commercialization of sexually explicit but non-obscene materials. Thus, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that
adult theaters showing motion pictures that depicted
specified sexual activities or
specified anatomical areas could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area. 1 Similarly, an adult bookstore was subject to closure as a public nuisance where it was being used as a place for prostitution and illegal sexual activities, because the closure
was directed at unlawful conduct having nothing to do with books or other expressive activity. 2 However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity where the screen is visible from a public street or place. 3 Also, the FCC was unable to justify a ban on transmission of
indecent but not obscene telephone messages. 4