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23 Stan. L. & Pol'y Rev. 19 (2012)
The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms

handle is hein.journals/stanlp23 and id is 29 raw text is: THE SECONDARY-EFFECTS DOCTRINE:
STRIPPING AWAY FIRST AMENDMENT
FREEDOMS
David L. Hudson, Jr.*
INTRODUCTION
The secondary-effects doctrine continues to wreak havoc in First Amend-
ment jurisprudence. Much adult entertainment litigation centers on this doc-
trine, the principal legal tool that enables government officials to regulate adult-
oriented expression with greater ease. It lowers the level of applicable judicial
scrutiny for regulations that appear to target unfavorable expression. While the
doctrine applies outside of adult-oriented expression, its primar7 use remains as
a potent tool for municipal officials to restrict adult businesses.
The doctrine is important because a surprising amount of First Amendment
law involves adult-oriented expression. According to one federal appeals court,
[A]dult entertainment establishments have played a disproportionately promi-
nent role in First Amendment doctrine.2 Although the U.S. Supreme Court has
recognized that the First Amendment protects nude dancing and other forms of
adult-oriented expression, the Court has used the secondary-effects doctrine to
limit such expression.3
The doctrine provides the mechanism by which government officials re-
ceive judicial approval for running roughshod over the First Amendment rights
* David L. Hudson, Jr. is a First Amendment Scholar with the First Amendment Center.
He teaches First Amendment law classes at Vanderbilt Law School and the Nashville School
of Law.
1. David L. Hudson, Jr., The Secondary Effects Doctrine: The Evisceration of First
Amendment Freedoms, 37 Washburn L.J. 55, 60-61 (1997).
2. TJS of New York, Inc. v. Town of Smithson, 598 F.3d 17,20 (2d Cir. 2010).
3. David L. Hudson, Jr., Adult Entertainment and the Secondary-Effects Doctrine:
How a Zoning Regulation May Affect First Amendment Freedoms, 2 FIRST AMEND. CENTER
FIRST REPORTS, no. 1, 2002, available at http://www.firstamendmentcenter.org/madison/
wp-content/uploads/2011/03/FirstReportAdultEntertainment.pdf.

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